It is an auspicious time for advocates of religious liberty in the United States. Consider what they have accomplished at the Supreme Court over the past year: They defended the right of Americans to express their faith while on the clock for a public school district (Kennedy v. Bremerton School District), affirmed the right of religious schools to use government vouchers (Carson v. Makin), heightened the standards protecting workplace accommodations for religious beliefs (Groff v. DeJoy), and expanded free speech protections for business owners who don’t want to make statements that go against their religious beliefs (303 Creative LLC v. Elenis).
What’s left to win? If you ask experts closely following the developments on the legal battlefield, they invariably give the same answer: Employment Division v. Smith.
“I predict that religious liberty advocates will ramp up their attack on Smith,” said Carl Esbeck, a professor of law at the University of Missouri. “They understand that 303 Creative was a wonderful victory, but it was a halfway victory. It only protects speech … so if they want full protection under the First Amendment free exercise clause, they need Smith reversed.”
In fact, it’s already begun. First Liberty and Alliance Defending Freedom, two religious liberty law groups, have already petitioned the Supreme Court to hear cases that call for Smith to be overruled.
To understand why Smith matters, one has to go back more than three decades. In the late 1980s, two counselors from a rehabilitation center in Oregon were fired after they ingested peyote as part of a Native American religious ceremony. The counselors applied for unemployment but were denied by the state because their firing was due to misconduct, as the hallucinogenic was illegal in Oregon. They appealed to the Supreme Court, arguing drug use should be protected when it’s done as part of a religious ritual. But they lost their case. The court ruled in Employment Division v. Smith that a law does not violate the First Amendment’s free exercise of religion clause if it is “neutral” and “generally applicable.”
To permit religious exceptions, the late justice Antonin Scalia wrote in his majority opinion, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
He added, “Any society adopting such a system would be courting anarchy.”
Religious liberty advocates were not happy with the decision and were confounded that Scalia, a stalwart conservative justice, would issue a ruling that, as Daniel Bennett, who teaches political science at John Brown University, explains, “tips the scales in favor of the state” at the expense of religious believers.
“Smith, ever since it was decided back in 1990, has been one of the more confounding Supreme Court decisions for conservatives, especially those who value religious freedom rights,” Bennett said.
The ruling prompted a bipartisan group from Congress to pass the Religious Freedom Restoration Act in 1993, which prohibits the government from imposing an undue burden on a person’s free exercise of religion. About 23 states have adopted state-level versions of the legislation as well. Federally, however, Smith is still a guiding precedent and shapes how courts interpret the legal limits of religious activity.
“The biggest critique that religious freedom folks have with Smith is that it puts a lot less burden on the state to demonstrate why a regulation is justified,” Bennet said.
Thomas Berg, the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas, explains it another way: Smith “no longer protects free exercise as a fundamental right, but simply, it protects from irrational or arbitrary conduct by the government.”
Religious liberty advocates have targeted Smith before. The most recent serious challenge was Fulton v. City of Philadelphia. In that case, the Supreme Court ruled in favor of a Catholic foster services agency that had been denied a contract by the city of Philadelphia for refusing to place children in same-sex homes. But chief justice John Roberts sidestepped the larger question of overturning the Smith precedent in the majority opinion.
Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch called for Smith to be overturned in a separate, concurring opinion. In a second concurring opinion, justices Amy Coney Barrett and Brett Kavanaugh also questioned whether Smith offers adequate protections against religious discrimination.
“Several justices think that protection is too little, but they haven’t yet settled on an alternative and so haven’t taken the step of overruling that rule of Smith,” Berg said.
Andrew Lewis, an associate professor in the School of Public Affairs at the University of Cincinnati, says that overturning Smith would raise questions about to what extent religious beliefs can provide exceptions to laws and regulations. For example, could people refuse to wear seat belts for religious reasons? Or to pay taxes that go towards the military? Or maybe Christian truck drivers would have the right to refuse to deliver goods that go against their faith, such as alcohol and tobacco.
“If you overturn Smith, does it give religious groups a free pass on all kinds of laws? So the trouble is figuring out where they will draw the lines,” Lewis said.
Some religious rights advocates favor a return to a test established in Sherbert v. Verner, a Supreme Court decision from 1963. The test argued the state had to demonstrate a compelling interest before it could justify placing a legal burden on someone’s religious beliefs or practices. The state was also required to find the least restrictive means possible to meet its legitimate goal.
That move might shift the legal ground on some expected legal clashes. About 20 states, plus Washington, DC, have passed laws that prohibit businesses from discriminating against LGBT customers. They were designed to be neutral and generally applicable, but may not meet Sherbert’s “least restrictive” standard.
Lewis, who has studied the political polarization of the Supreme Court, says Smith has gotten caught up in America’s culture wars. Originally, the case was about a religious minority seeking an accommodation from the law. Now it involves the rights of large, dominant groups such as evangelicals and Catholics, who are opposed to some social changes like the increase in the acceptance of LGBT people. He worries that the polarization will undermine broad American support for religious liberty.
“You have to be careful that religious liberty is not just an issue for one side of the political aisle or that is championed only by one side. We need to make sure that it has value and importance for how we live together and how we protect freedom and protect against overreach,” Lewis said.
For Christians, Bennett says, the most important thing is to be consistent on religious freedom, especially in a pluralistic society that is becoming less observant.
“It behooves us to have a public square that is respectful and open to different competing conceptions of the good, so the gospel can flourish authentically in those environments,” Bennett said.
If one of the cases challenging Smith does get to the Supreme Court, there is a chance the justices will overturn the precedent. According to a statistical study of the Roberts court published in 2021, the current Supreme Court has ruled in favor of religious organizations 81 percent of the time. Previous courts, dating back to the 1950s, sided with religious liberty plaintiffs in about half of all cases.
With a growing list of Supreme Court victories, religious liberty advocates see an opportunity.