Twenty years ago, the Supreme Court ruled that state laws that interfered with the free exercise of religion were constitutional provided their requirements applied equally to everyone.
At the time, I and others warned that the Court’s ruling was a blow from which religious freedom might never recover.
Twenty years later, I’m sad to say, we were right.
The decision, Employment Division v. Smith, involved two Oregon drug counselors who were fired for using peyote during a Native American religious ceremony. While it makes intuitive sense that drug counselors should be fired for using illegal drugs, the majority decision, written by Justice Scalia, was overly broad.
Scalia wrote that in cases involving a “neutral law of general applicability,” what he deemed “incidental” interference didn’t violate the First Amendment. So as long as the government doesn’t specifically target the free exercise of religion, it can abridge it.
In a recent issue of the Weekly Standard, Allen D. Hertzke pointed out the irony that the Court’s conservative leader facilitated the ongoing “judicial onslaught against the free exercise of faith.”
Prior to Smith, any abridgment of religious freedom could only be justified by a compelling state interest. Not a “legitimate” interest, or even and “important” interest, but a compelling interest. As you can imagine, there aren’t many such interests.
After Smith, any governmental interest will do, as long as the law in question applies to everybody. States are free to carve out exceptions for religious groups, but they aren’t obliged to.
Now, the neutrality of a given law or regulation can be contested, but that rarely, if ever, works.
Case in point: last term’s case involving the Hastings College of Law. Hastings claimed that the Christian Legal Society discriminated against gays because voting members had to uphold Christian teaching about sexuality. Well, the law school won on the prevailing standard, and the Christian Legal Society and religious freedom lost.
This was only a warm-up for what Hertzke calls the “looming train wreck between gay marriage and religious freedom.” Laws prohibiting discrimination on the basis of sexual orientation are, by definition, generally applicable. As for exceptions, in a world were disapproval of same-sex unions is increasingly regarded as bigotry, that’s not likely to happen.
It’s not just homosexuality: virtually every instance where Christians are being told to choose between their beliefs and the law involves a law of “generally applicability.”
The world created by Smith is why the Manhattan Declaration is so important. If the Supreme Court upholds the district court ruling involving overturning California’s ban against so-called “gay marriage,” the “train wreck” will be upon us. Religious freedom effectively will become a dead letter. Whether we want to or not, we will have to choose whom we serve—Caesar or God.
It will be a tragic outcome made all the more tragic by the fact that it didn’t have to be this way: Caesar once had to justify encroaching on God’s domain. Not anymore. Well, Congress hopefully will deal with this. Or maybe Scalia will see the error of his ways and correct it. But in the mean time, we stand our ground.