The Three Real Questions That Come After Overruling Employment Division v. Smith

What is a "religion"? When is a religious belief "sincere"? When is a burden on religion "substantial"?

Fulton v. City of Philadelphia is about four years old. Yet, the Court seems no closer to deciding whether to overrule Employment Division v. Smith. Of course, three Justices were ready to do so in Fulton. But Justices Barrett and Kavanaugh had some questions about what would replace Smith. I honestly can't even remember what those questions were. And I'm not sure how much they even matter. I think those questions were mostly filler--Barrett and Kavanaugh had to say something because they were unwilling to overrule Smith. If those questions were really so important, there should have been some subsequent writings to address the point. There haven't been. Indeed Mahmoud went out of its way to avoid talking about Smith. I suspect that Barrett and Kavanaugh are content with Tandon, and now Mahmoud, which make it very unlikely that Smith will need to be revisited.

But, a lot of people still care about Smith. Religious liberty groups bring a steady stream of "Overrule Smith" cert petitions. So far, they've been denied. Sooner or later one of these cases may get a fourth vote for cert. And there is some hard work ahead for the Court.

Here, I will sketch three significant questions that would come after overruling Smith. Each of these questions is premised on a completely predictable outcome: once people realize that the Free Exercise Clause allows them to obtain exemptions from neutral laws, they will suddenly discover that their free exercise of religion is being substantially burdened.

To make things simpler, presume that the answers to each of these three questions will require the Court to change pre-existing doctrine. In other words, by overruling Smith, the Court can establish a new test for strict scrutiny. The Court would not simply restore Sherbert v. Verner or adopt the RFRA standard. This test can give the government a bit more leeway. In my view, many--but not all--of these views can be reconciled with existing doctrine. But this presumption will make the thought experiment simpler.

Many of these issues are discussed in my co-authored article on abortion and religious liberty. I think the moment for these sorts of free exercise claims under state RFRAs have largely petered out. The ability to obtain abortion drugs through the mails has made it unnecessary to raise these sorts of time-consuming and difficult free exercise claims.

Here are the three questions.

Question #1: What is a "religion"?

In Smith, Justice Scalia worried that the Sherbert test allowed every person to become a law unto himself. In other words, a person could gain an exemption from the law by dressing up his political, philosophical, or moral views in the garb of religion. Smith had a religious claim to using a controlled substance, but other people who like to use the same substance may not have the same religious bona fides. For the Free Exercise Clause to be triggered, there has to be religion. What, then, is religion? In most cases, this issue is fairly straightforward. Well-established faiths that have been around for a long time--especially those in existence when the First Amendment was framed--would be religions.

The harder cases would involve new, or recent, faiths. This inquiry blends into the sincerity inquiry. Is this religion an actual religion, established for religious reasons? Or was this religion manufactured for the purpose of gaining exemptions from the law? For example, what if a drug dealer establishes the Church of the Holy Marijuana Leaf, and ordained all of his dealers as ministers.

There is an even harder question lurking under the surface: what about a group that calls itself religious, but rejects all of the traditional indicias of religion. For example, the organization rejects the idea of any higher power, has no rituals, imposes no actual obligations, and so on. Perhaps the organization professes some sort of moral code, but that code has no grounding in anything that traditionally would be understood as religious. If you can tell, I keep using the word tradition. Is there a "history and tradition" approach to deciding what is a religion? Would we consider how the Framers of the First Amendment would have understood a religion? I don't have an answer to these questions here, I am simply raising them.

Question #2: When is a religious belief "sincere"?

It is something of a myth that courts will not probe sincerity. They do. Courts will not determine what the articles of a particular faith are. But they will determine whether a person sincerely adheres to those articles. Historically, these sorts of inquiries are rare. Most people who bring Free Exercise claims in court are presumed sincere. But there are some extreme cases. For example, what happens when a person who is drafted suddenly becomes a Quaker? Or, more commonly, what about prisoners who suddenly discover their Jewish faith as a way to obtain (healthier) Kosher food?

I suppose it is possible to simply measure how long a person has held a particular belief. Or perhaps you can discount a religious belief that was born at a convenient time, such as following the draft or incarceration. But I'm not a fan of these standards. People can find faith during difficult times--there are no atheists in the foxhole, as the saying goes. Why should a person be punished for reaching out to a higher power during difficult times?

In the past, I've written about another way to test sincerity. And this inquiry blurs into the first question about what is a religion. Historically, religions have mandated certain actions, while prohibiting other actions. And a member of that religion should follow at least some of those mandates and prohibitions, because of that religion. Stated differently, is there something you will do because of religion, even if you would otherwise abstain from doing; and is there something you abstain from doing because of religion, even if you would otherwise do it. In my view, if you can identify at least one regular act that fits under either rubric, you have cleared the sincerity threshold. And I say regular to avoid opportunistic claims. You can't simply do something once or for a limited duration. Moreover, if the person stops acting based his beliefs, the exemption should be rescinded.

This bar is not a particularly high. But if a professed religion does not in any way affect how you would otherwise behave, it is more difficult to test whether a religious belief is sincere. In other words, if your religion is merely a facsimile of your personal beliefs, and there is no delta between your religion and your own philosophy, it is harder to establish that there is a religious belief at all--at least a religious exercise that would be cognizable under the Free Exercise Clause.

I freely admit there is a risk with probing sincerity. This sort of inquiry can be weaponized, and exclude worthy claims from protection. That is why I would make the bar very low.

Question #3: When is a burden on religion "substantial"?

In free speech law, the courts will routinely measure the burden on expression. Larger burdens on speech require more more narrow tailoring. But in the context of religion, I'm not sure how much work the word "substantial" plays. Banning a practice seems substantial, but what about making the practice more difficult? What if a state banned ritual Kosher slaughter by requiring that animals must be stunned? This law would certainly make it harder to obtain kosher food, but the food could still be imported from other jurisdictions at a higher cost. Is this burden substantial? Consider anther example. I do not weak a yarmulka in public, though I wear one in synagogue. What if the government passed a law that prohibited wearing religious symbols in government buildings. Could a person who would not otherwise wear a yarmulka in a government building claim a burden that is substantial? I suppose the burden could be described at a high level of abstraction, but is it really substantial?

This third inquiry blurs with the first two questions. Even if a person has a sincerely held belief in certain aspects of a religion, I think the claimant would have to show that the law in question is in fact substantially burdening that particular facet of religion.

It is also worthwhile to consider the facts from Hobby Lobby. Under the ACA, the failure to cover all of the forms of emergency contraception would result in an annual penalty of $2,000 per employee. If we apply the logic of NFIB, there is no actual mandate, but instead a penalty for not purchasing insurance. Justice Alito's majority opinion found that paying the $2,000 penalty was not a viable alternative, as the plaintiffs had "religious reasons for providing health-insurance coverage for their employees." In other words, the employers would still have their religious exercise burdened. But one can imagine a different set of facts where a person of faith could pay a nominal penalty to avoid a mandate that violates their religious exercise. Let's say the penalty in Hobby Lobby was $2 per employee. Would that burden be substantial?

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I think these are the sorts of difficult questions that the Court would have to wrestle with if Smith were overruled. These are not pleasant questions, because they would likely result in certain people not being able to claim protection under strict scrutiny. People do not like their religious being called not a religion, do not like having their religious beliefs being called insincere, and do not wish to measure how much their religion is being burdened.

I remember well the outrage my posts from 2022 occasioned. Maybe that is reason enough why Justices Barrett and Kavanaugh will leave things as they are. But I do not favor such reasoning based on outcomes. If Smith is wrong as an originalist matter, it should not stand. RFRA has proven that strict scrutiny is a viable method of deciding cases. And the Court could always use a slightly-less-strict scrutiny--based on some of the considerations above--to weed out invalid claims.