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My Argument for Preserving Employment Division v. Smith

I'd love to hear your thoughts about this draft brief.


In Fulton v. City of Philadelphia, the Court is considering whether to reverse Employment Division v. Smith, the case holding that (generally speaking) religious objectors aren't constitutionally entitled to exemptions from generally applicable laws. I have long been one of the few law professors who (1) thinks Smith is right, but (2) thinks that jurisdiction-by-jurisdiction Religious Freedom Restoration Acts are generally a good idea. I wrote an article about that in 1999 (A Common-Law Model for Religious Exemptions), and now an amicus brief in Fulton (with the help of my students Robert Bowen, Delaney Gold-Diamond, and Caleb Mathena). [UPDATE: The final filed version of the brief is here.]

The amicus brief is on my own behalf, so there are no reasons for me to keep it confidential before I file it (it's due next Wednesday, June 3, but I'd like to file it a couple of days early), and every reason not to: If there are any errors, small, medium, or large, in my thinking on this, I would love to have a chance to fix them. So if any of you are interested in having a look and giving me your suggestions, I'd much appreciate it. (Note that the brief has not yet been cite-checked or fully proofread, though I'd be glad to know of proofreading glitches as well as about more serious ones.) I include the Summary of Argument below, but you can read the whole brief here.

[1.] Justice Scalia was right: Courts should not be constantly "in the business of determining whether the 'severe impact' of various laws on religious practice" suffices to justify a constitutionally mandated exemption from a generally applicable law. Employment Division v. Smith, 494 U.S. 872, 889 n.5 (1990). "[I]t is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice." Id.

Indeed, overruling Smith would revive all the flaws of a broad substantive due process regime: It would require courts to routinely second-guess legislative judgments about the normative foundations for a wide range of laws, and about the laws' practical necessity.

For instance, should people have a right to assisted suicide? This Court in Washington v. Glucksberg, 521 U.S. 702 (1997), refused to recognize such a right under substantive due process, and upheld an assisted suicide ban under the rational basis test. But if Smith were overruled, any person who claims a religious obligation to assist in suicide would trigger the very sort of strict scrutiny inquiry that Glucksberg forecloses.

Likewise, this Court has rejected heightened scrutiny of economic regulations, such as minimum wage laws. But if Smith were overruled, a person who claims a religious obligation to hire people but for less than minimum wage would be entitled to an exemption, unless the regulation passes strict scrutiny. And the list could go on.

Of course, it is appealing to protect religiously motivated action (or inaction) that does not really hurt anyone. But what constitutes "hurting anyone" is a hotly contested issue, as this very case shows. It is contested normatively. (Should refusing to deal with a same-sex couple qualify as hurting them? Is paying people a supposedly "exploitative" wage, even with their consent, hurting them?) And it is contested practically. (Would allowing assisted suicide end up pressuring people into choosing death even if they would rather not?) This Court's rejection of a general right to liberty under the rubric of substantive due process wisely recognizes that these questions should ultimately be left to the political process.

[2.] To be sure, normative and pragmatic judgments about which actions hurt others are familiar to courts. Much of the common law of tort, contract, and property reflects such judgments.

But such decisions are only tentative, because they can be overruled by legislatures. Judges have the first word on these matters, but not the last. That makes common-law decisionmaking legitimate even when aggressive use of substantive due process would not be.

Indeed, decisionmaking under RFRAs is in this respect similar to such common-law decisionmaking. Because RFRAs (state or federal) are mere statutes, they give judges authority to create exceptions but subject to possible revision by legislatures.

Thus, for instance, this Court concluded in Gonzales v. O Centro Espírita Beneficente União do Vegetal that, in effect, hoasca was not so harmful as to justify denying an exemption request, 546 U.S. 418 (2006)—but if Congress had disagreed, it could have exempted the hoasca ban from RFRA, and thus had the last word on the subject. But if Smith were overruled, this Court's estimate of harm would have been final, unrevisable without an Article V constitutional amendment.

[3.] Some substantive constitutional rights, of course, do require courts to evaluate the normative and pragmatic justification for restrictions on those rights, and the test in those cases often is strict scrutiny. But Smith was correct in concluding that claims of those rights are quite different from claims of religious exemptions, 494 U.S. at 885-86. Those rights require second-guessing legislative judgments only for specific, well-defined zones of regulation (e.g., content-based speech restrictions), where such judicial decisionmaking is especially justified. Overruling Smith would require courts to consider overriding legislative decisions as to a vast range of generally applicable laws.

[4.] Nor should this Court limit Smith to laws that lack secular exceptions. A law can be generally applicable if it does not single out religious behavior for special burdens, even if it does include exceptions for certain kinds of secular behavior. Indeed, a vast range of important laws have many exceptions—trespass law, the duty to testify, antidiscrimination law, copyright law, contract law, and many others.

[5.] This brief takes no position on whether statements of government officials and the shifting legal basis for the government's actions may indicate that the City of Philadelphia singled out Catholic Social Services for different treatment on the basis of religion. Pet. Br. __. The brief argues only that this Court should reaffirm the Smith principle that, absent such intentional discrimination, the Free Exercise Clause does not provide a presumptive constitutional right to religious exemptions from government actions.

[Footnote:] This brief also does not discuss the original meaning of the Free Exercise Clause, a matter treated in Justice Scalia's and Justice O'Connor's opinions in City of Boerne v. Flores, 521 U.S. 507 (1997), and likely in other forthcoming amicus briefs in this case.