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06/09/2020

An Originalist Argument for Overruling Employment Division v. Smith
Michael Ramsey

In Fulton v. City of Philadelphia, the Center for Constitutional Jurisprudence filed this amicus brief in support of the petitioners, addressing the question whether the Supreme Court should overrule its reading of the free exercise clause in Employment Division v. Smith, 494 U.S. 872 (1990) (per Justice Scalia).  Here is the summary of argument: 

Amicus agrees with Petitioners that the Court should overrule Employment Division v. Smith, 494 U.S. 872 (1990). Courts applying Smith frequently deny relief even when the law imposes a substantial burden on the exercise of religion—a situation as intolerable as if the controlling standard for free speech routinely allowed censorship. Thirty years’ hardship under a faulty constitutional standard is long enough.

Without Smith, the Court can restore the Free Exercise Clause to its full vigor. Deciding how to do that depends on two questions. What does the Clause mean? And how should it be applied?

This brief addresses only the question of original public meaning—not the separate question of contemporary application. We argue that the Free Exercise Clause was originally understood to protect the unqualified right to exercise religion, free from government interference. Another amicus brief explains that the Free Exercise Clause should be applied through a combination of recognized categorical rules and strict scrutiny. See Brief of The Church of Jesus Christ of Latter-day Saints, et al. as Amicus Curiae Supporting Petitioners, Fulton v. Phila., No. 19-123.

A serious effort to determine the  meaning of the Free Exercise Clause begins with the “duty to interpret the Constitution in light of its text, structure, and original understanding.” N.L.R.B. v. Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in judgment). Although Smith is criticized for not considering the history of the Free Exercise Clause, it is hardly alone in that respect. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 575 (1993) (Souter, J., concurring in part and concurring in judgment). No opinion of the Court has explored that history since the nineteenth century, id. at 574, though Justices Scalia and O’Connor debated rival historical interpretations while advocating for and against Smith. For Justice Scalia, history denied that “accommodation was understood to be constitutionally mandated by the Free Exercise Clause.” City of Boerne v. Flores, 521 U.S. 507, 541 (1997) (Scalia, J., concurring). For Justice O’Connor,  “the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.” Id. at 555 (O’Connor, J., dissenting).

Our review of historical evidence—including materials that are frequently overlooked—suggests a different approach. Americans in 1789 understood the Free Exercise Clause as a guarantee that the new federal government would not make laws curtailing the exercise of religion. Decades later, the Fourteenth Amendment was added on the understanding that the right to exercise religion also would be unqualified against the states. Those who enshrined these provisions in our Constitution understood them as a pledge that all Americans could exercise their religion freely. It is that original understanding that ought to weigh heavily in the balance as the Court decides how to honor that pledge now—and in the future.

This reading of the Free Exercise Clause is consistent with the place that the constitutional founders assigned religious freedom. Preserving it was one of the grand aims of the Revolutionary War. Religious freedom was widely understood at the time as an inalienable right and as a condition of maintaining a republican form of government. New York and other states refused to enter the Union without an assurance that the Constitution would be amended to protect religious freedom. Every state ratifying convention that proposed a religious freedom amendment gave the free exercise of religion unqualified protection.

Interpreting the Free Exercise Clause as an unqualified right is also consistent with the constitutional text and legislative history, as well as early legal treatises. A categorical right to exercise religion attracted broad consensus because none of the federal government’s enumerated powers included the authority to regulate religious activity. The Fourteenth Amendment extended that unqualified right as a shield against infringement by state governments.

This interpretation holds significant implications.First, Smith should be overruled as irreconcilable with the original understanding of the Free Exercise Clause. An unconditional right to exercise religion cannot be squared with Smith’s holding that a law is valid if it satisfies the bare-bones criteria of neutrality and general applicability. See 494 U.S. at 879. Second, an unqualified protection of religious exercise should be the constitutional baseline from which to assess any judicial standard replacing Smith.

Strict scrutiny looks different from that perspective: it allows the government to carry out its most essential purposes even when it imposes a substantial burden on the exercise of religion. That standard no doubt furnishes the most plausible modern solution for vindicating the Free Exercise Clause despite the manifold conflicts that arise in a society governed under today’s regulatory state. See also Bowen v. Roy, 476 U.S. 693, 732 (1986) (O’Connor, J., concurring in part and dissenting in part) (“The rise of the welfare state was not the fall of the Free Exercise Clause.”). But the historical baseline we describe suggests that strict scrutiny is a compromise with the Constitution’s pledge of religious freedom—and ought to be acknowledged as such. Far from granting religious people and institutions a gratuitous benefit, strict scrutiny gives the exercise of religion less protection than the Constitution was originally understood to guarantee.

Note: whether to revisit Employment Division v. Smith is specifically one of the questions on which cert was granted.

(Thanks to James Phillips, who is one of the attorneys on the brief, for the pointer.  Prominent originalist scholar John Eastman of Chapman University Law School and the Center for Constitutional Jurisprudence is also on the brief.)