Many immigrants came to this land in the hope that they could practice their religion in peace and safety — and still participate fully in civil society.
But in 1990, the country took a step back when the Supreme Court in Employment Division v. Smith said that the First Amendment, which protects the “free exercise” of religion, prohibits only laws that target religion. So long as a law applies to everyone, it is permitted.
While this may sound unobjectionable, the decision actually allows governments to effectively prohibit core religious practices — like the ability of a Jewish police officer to wear a ceremonial head covering — without justification. By letting governments burden religious exercise as long as they impose that same restriction on everyone, it diminishes the promise of the free exercise of religion, in which citizens are allowed to live out the tenets of their faith.
Fortunately, the Supreme Court has the chance to reconsider that rule in Fulton v. City of Philadelphia, which it heard on Wednesday. Catholic Social Services is contesting Philadelphia’s demand that it certify and endorse same-sex couples as foster parents, if it wishes to continue to participate in the foster care system, as it has for over a century. Doing so, the agency says, will violate its sincerely held religious beliefs.
Fulton presents an opportunity for the Supreme Court to reverse Smith and allow religious Americans to bring First Amendment claims challenging generally applicable laws that burden their faith. If the court overturns Smith, it will go a long way to increase constitutional protections for religious believers, especially religious minorities.
In Smith, the Supreme Court, in its majority opinion delivered by Justice Antonin Scalia, decided that the First Amendment did not protect Native Americans’ sacramental use of peyote, a hallucinogenic drug. The broad reach of the court’s decision surprised many. It upended longstanding standards of judicial review for religious liberty cases.
In explaining its decision, the court acknowledged that immunizing generally applicable laws from scrutiny “will place at a relative disadvantage those religious practices that are not widely engaged in” (that is, religious minorities’ practices), but said it was necessary to avoid “courting anarchy.” This is only half true. The decision did disadvantage religious minorities, but it was not necessary to avoid disorder.
After Smith, when religious Americans sought accommodations, their pleas were often denied. Courts used the new decision as reason to deny religious accommodations to Jews, Christians, Muslims and Buddhists. Discouraged from fighting for their rights, religious Americans brought about half as many constitutional challenges per month in the three years following Smith as they had in the preceding decade. And in the cases that were brought (presumably the strongest claims), religious claimants went from winning 39 percent of the time to less than 29 percent.
While Smith restricted the religious freedom of all Americans, religious minorities suffered the most harm. The court had predicted this, and for good reason. A legislature is more likely to pass a generally applicable law that accidentally burdens a little-known Jewish practice than a well-known Christian practice. Smith thus put the fate of uncommon and unknown religious beliefs at the mercy of majorities.
For example, there’s a Jewish prohibition against wearing clothes that contain both wool and linen. It is easy to imagine the armed forces requiring those in their command to wear uniforms that violate this religious rule. Jewish soldiers, per Smith, would be left with weakened constitutional recourse if their commanders refused to accommodate their concerns.
Courts have cited Smith to deny a Jewish parent the right to reject an autopsy on her child, a Jewish police officer the ability to wear a skullcap, and a Muslim corrections officer trainee the ability to maintain a religiously required beard. If the court were to reconsider Smith, these plaintiffs wouldn’t necessarily win, but at least they would have their day in court.
In 1993, soon after the Smith decision, Congress passed the Religious Freedom Restoration Act, which helped to restore pre-Smith protections. Unfortunately, the court determined that the statute would apply only when a litigant was challenging federal laws, not state or local ones.
But the act did illustrate that Justice Scalia was wrong that the Smith decision was necessary to prevent anarchy. With the act in place, religious believers have brought more claims, but they have not flooded the courts with litigation, and courts have proven capable of distinguishing between strong and weak claims. We should extend constitutional protection to all Americans regardless of what government entity burdens their faith.
Americans are rightly proud that in our country we can find countless examples of religious expression and practice — from Christians praying in public and Jews eating kosher meals to Sikhs carrying ceremonial daggers, or kirpans, at work, and a Muslim congresswoman wearing her hijab on the floor of the House of Representatives.
But few Americans realize that many religious practices often aren’t protected by the Constitution and thus could be effectively outlawed by the government. As the court considers Fulton, it should aim to restore robust First Amendment protections for Americans of all religious faiths.
Howard Slugh is a lawyer and co-founder of the Jewish Coalition for Religious Liberty. Asma T. Uddin is the author of the forthcoming book “The Politics of Vulnerability: How to Heal Muslim-Christian Relations in a Post-Christian America.”
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