Today marks the twenty-fifth anniversary of a constitutional disaster. Justice Antonin Scalia’s majority opinion for the Court in Employment Division v. Smith has proven to be one of the most devastatingly long-term harmful Supreme Court constitutional decisions of the past half century.
In a nutshell, Smith held that the First Amendment’s protection of the right to the “free exercise” of religion does not confer a substantive freedom shielding religious faith from laws and regulations that impair its free exercise. Rather, the Court held, the Free Exercise Clause permits governments to enact laws that restrict the exercise of sincere religious conviction. They just can’t be explicit about it. Such laws must be “neutral” on their face—meaning that they apply to non-religious conduct as well as religious conduct. If a law merely has the effect of preventing or banning the exercise of religion, that is not a constitutional problem under the Free Exercise Clause, according to Smith.
Smith produces a strangely ironic reading of the Free Exercise Clause. According to this view of the Constitution’s protection of the “free exercise” of “religion,” there is nothing constitutionally special about the free exercise of religion. Religion is just one other thing that might get in the way of government’s ordinary powers, no different in kind from any other set of beliefs or preferences that might be opposed to government policy. The right to the free exercise of religion is not a substantive freedom. It confers no constitutional immunity from government interference. The Free Exercise Clause is merely a non-discrimination rule. Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.
Religious Freedom Is a Substantive Natural Right
Smith’s rule is not completely implausible, but it is wrong. The text of the Free Exercise Clause protects the “free exercise” of religious faith. That rather plainly makes religious freedom a substantive liberty, not a mere nondiscrimination requirement.
The text singles out religion for unique protection. Constitutionally, this means that religious exercise is not a category of conduct to be treated the same way as anything else. In addition to the text itself, there is considerable historical evidence to suggest that this was the original understanding of the Free Exercise Clause. As the distinguished religious liberty scholar Michael McConnell has demonstrated, the framers’ understanding of religious liberty prominently included the idea that such a liberty could, and often would, require exemption from the application of the ordinary laws of the secular state.
The “substantive liberty” reading is the only one that makes sense of the decision to have a free exercise clause in the first place. As I have argued at length elsewhere, protection of religious liberty only makes sense on the premises that God exists (or may well exist); that God makes claims on the loyalty and conduct of human beings; that such claims are, in principle, prior and superior to the claims of mere human authority. Constitutional protection for the free exercise of religion is therefore most sensibly understood as government’s recognition of the priority and superiority of God’s commands over anything the state or society requires or forbids.
This understanding accords with the founding generation’s understanding of religious freedom as a “natural right”—literally God-given, rather than state-conferred—over which the state has no legitimate authority. It also accords with the framing generation’s belief in both the possibility of religious truth and the incompetence of government to judge such matters.
Smith’s reading of the Free Exercise Clause as a mere nondiscrimination rule is thus contrary to the best, most natural reading of the text; in tension with its logic and purposes; inconsistent with the premises that justify it; and at odds with much evidence of its original understanding. In a word, Smith is simply wrong.
Slivers of Religious Freedom
Smith left slivers of religious freedom—a few narrow and embarrassingly unprincipled exceptions to its rule, seemingly invented to avoid having to overrule a welter of prior precedents contrary to Smith’s revisionist rule.
Under Smith, if a “neutral” law permits consideration of individual circumstances, religious considerations must be accommodated the same as any others, and treated no less favorably. Fair enough. But the second Smith exception is utterly unprincipled: if a free exercise claim is paired with some other constitutional argument—neither of which would prevail on its own—such a “hybrid” claim might (sometimes) require “strict scrutiny” of the government’s action. This is, of course, nonsensical.
Smith’s slivers of freedom are slivers indeed. Under Smith, government may restrict religious speech, association, expression, worship, and action, so long as it restricts secular conduct in similar ways. Thus, Christian student groups, for example, have no religious freedom right to require that their leaders be Christians, if secular student groups could impose no religious-affiliation requirement as a matter of general “non-discrimination” rules (see Christian Legal Society v. Martinez, 2010). The free exercise of religion, under Smith, entails no right of a religious group to be religious.
Under Smith, religious individuals and groups have no First Amendment right to exemption from laws requiring provision of services for same-sex wedding ceremonies, even if they conflict with sincerely held religious belief. If state law treats a given exercise of religious conscience as forbidden discrimination, then the claim of religious conscience loses under Smith.
It is possible that the Court’s 2012 decision in Hosanna-Tabor v. EEOC might defend a church, specifically, or its ministers, from being compelled to perform a marriage ceremony in violation of a church’s tenets. One would certainly hope so. But it is not clear exactly how far Hosanna goes.
What about religious institutions whose faith convictions bar them from providing contraception or abortion-drug coverage in their health plans? They appear to have no freestanding substantive First Amendment religious freedom right to exemption from the HHS mandate, at least as far as Smith is concerned. Of course, there’s still a good argument against the lawfulness of such a mandate, even under the reasoning of Smith. The fact that the government’s mandate is not truly neutral and across-the-board, but exempts thousands of employers and appears targeted specifically at religious groups should mean that it is unconstitutional, even under Smith’s ungenerous rule. In addition, the mandate violates the Religious Freedom Restoration Act, Congress’s attempt to provide a civil rights statutory firewall against precisely the types of intrusions permitted by Smith.
The Un-Scalian Scalia
Smith’s reasoning—its structure, logic, and content—is dreadful. And, given its author, almost inexplicable: Antonin Scalia is one of the most brilliant, principled, sound, and thoughtful jurists ever to sit on the Supreme Court. But his legal skills utterly failed him in Employment Division v. Smith. His opinion for the Court was his worst piece of judicial craftsmanship in a major constitutional opinion in nearly thirty otherwise magnificent years on the Court.
Scalia argued that because the free exercise clause plausibly could be read as embodying a neutrality-is-all-that’s-needed rule, that was sufficient to make it the correct understanding of the clause because—here comes the shockingly un-Scalian part of Scalia’s opinion—this was the preferable public policy. Antonin Scalia—Mr. The-Constitution-Is-Not-A-Living-Document—wrote that, given changes in American society, and changed cultural conditions of increased religious pluralism, we could no longer “afford the luxury” of a broad understanding of religious liberty.
To adhere to a strict standard favoring religious liberty would create, Scalia wrote, “a private right to ignore generally applicable laws.” This could not be the right reading of free exercise, Scalia said, for it “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Even if that might have been acceptable in the past, it would no longer do, for reasons of sound social policy and changed circumstances: “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.”
I remember being shocked, as a young Department of Justice lawyer, to read this in, of all things, a Scalia opinion. Policy considerations trumping what one otherwise might find to be the meaning of the constitutional text? The Constitution needs to yield to the needs of a changing society? Who are you, and what did you do with Antonin Scalia?!
The opinion reads no less strangely today—perhaps even more so, given a quarter century of Scalia’s uncompromising defense of original meaning as essential to the rule of law. One would expect from Scalia something more along these lines: So what if a constitutional provision might be thought inconvenient, anachronistic, or awkward for today’s society? Isn’t that what the constitutional amendment process is for? As long as a constitutional provision remains in force, it remains in force; its meaning remains its original meaning; and judicial duty is to enforce it without reservation, like it or not.
A Failure of Conservative Jurisprudence
What makes Smith all the more regrettable is that it was an utterly unforced error. The good guys—the justices who might have been expected to support religious liberty, who regularly support a broad construction of First Amendment freedoms consistent with the framers’ intent to recognize them as fundamental liberties, who generally oppose text-scrapping “improvements” of the Constitution in accordance with the “feelings” of society in a particular moment—misfired this time. Now, we’re suffering the consequences.
The Smith majority consisted of Scalia, Chief Justice William Rehnquist, and Justices Byron White, Anthony Kennedy, and John Paul Stevens. All save Stevens were—at least at the time—judicial conservatives. Only Justice Stevens was openly hostile to religious faith and action. The sad fact is that none of the so-called “conservative” justices embraced the overriding value of religious liberty, or a strict reading of the constitutional text. Full defense of the Free Exercise Clause as a substantive freedom fell to the three dissenting liberals—Justices Brennan, Marshall, and Blackmun. (Justice O’Connor concurred in the judgment, but rejected the majority’s narrow reading of the Free Exercise Clause.)
Smith is not by a long shot the worst Supreme Court decision of all time, or even of the past twenty-five years. As a matter of the human harm it inflicts, there are far more egregious cases. Planned Parenthood v. Casey and Roe v. Wade, the Court’s abortion decisions, top the list in the modern era. Nor is Smith the most indefensible of opinions in terms of the Court’s legal analysis. Roe, Casey, Lawrence v. Texas, and Windsor v. United States, each adopting and extending some form of “substantive due process,” are worse than Smith on this score. Smith is a dubious and insidious interpretation of the Free Exercise Clause, and Scalia’s opinion is an embarrassment, but it embodies an at least barely plausible argument from the constitutional text.
But Smith is hugely pernicious in its effects. Like a weed, it intertwines with other actions of government, strangling freedom. In fact, Smith’s subtlety and superficial plausibility are in part what make it so deadly. And Smith is positively perverse in its consequence: not only does the Constitution’s protection of religious free exercise entail no positive protection for religious free exercise, but Smith’s rule means that the sphere of religious liberty is utterly at the mercy of government’s choices. The broader and more unrestrained government’s reach, the smaller the sphere for religious liberty. As government expands, religious liberty shrinks. This is an upside-down reading of a constitutional provision that obviously singles out religion for special protection from government.
Twenty-five years after Smith, we’ve come a long way, but not in the right direction. The right to freedom of religious exercise and conscience—which Scalia cheerfully left in the hands of legislatures—is being overrun by those same legislatures and by courts acting in the name of the Constitution. We are relearning a bitter lesson: that what Scalia called “a luxury” that “we cannot afford” is in fact the first, the last, and the most fundamental line of defense against tyranny in the form of legal evisceration of religious conscience.