Amicus Curiae Brief — Sharonell Fulton, et al., Petitioners v. City of Philadelphia, Pennsylvania, et al.

No. 19-123

In the

Supreme Court of the United States

SHARONELL FULTON, et al.,

Petitioners,

v.

CITY OF PHILADELPHIA, PENNSYLVANIA, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Third Circuit

BRIEF OF PROFESSORS IRA C. LUPU,

FREDERICK MARK GEDICKS, WILLIAM

P. MARSHALL, AND ROBERT W. TUTTLE

AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

David S. Flugman

Counsel of Record

Faith E. Gay

Caitlin J. Halligan

David A. Coon

Selendy & Gay PLLC

1290 Avenue of the Americas

New York, New York 10104

(212) 390-9000

dflugman@selendygay.com

Counsel for Amici Curiae

297747

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. T HE FREE EX ERCISE CL AUSE

DOES NOT REQUIRE RELIGIOUS

EXEMPTIONS FROM GENERALLY

APPLICABLE, RELIGION-NEUTRAL

LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Judicial recog nition of relig ious

exemptions from neutral laws has

no historical foundation . . . . . . . . . . . . . . . . . 3

1. Ea rl y Un d e r s t a n d i n g s a n d

Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Sherber t and Yoder Diverged

from Historical Understandings

and Precedent . . . . . . . . . . . . . . . . . . . . . 9

3. Inconsistent Application of the

Sherbert/Yoder Standard Provoked

a Restoration of Traditional Free

Exercise Principles in Smith . . . . . . . . 12

ii

Table of Contents

Page

B. Smith correctly held that the Free

Exercise Clause does not create a right to

exemption from general laws, but rather

protects the right to be treated equally

with one’s secular counterparts . . . . . . . . . 16

II. R E P L A C I N G S M I T H W I T H

PETITIONERS’ STRICT SCRUTINY

T EST WOU LD U NDERMINE

JUDICIA L A DMINISTRATION OF

THE LAW AND CREATE A REGIME

OF EXEMPTIONS ON DEMAND . . . . . . . . . 23

A. Pe t i t i o n e r s ’ t e s t w o u l d i nj e c t

inconsistency and unpredictability

into a coherent and administrable

area of law . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B. Petitioners’ test would invite exemptions

“on demand” . . . . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Barnes v. Glen Theatre, Inc.,

501 U.S. 560 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Bob Jones Univ. v. United States,

461 U.S. 574 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Bowen v. Roy,

476 U.S. 693 (1986) . . . . . . . . . . . . . . . . . . . . . 13, 16, 24

Branzburg v. Hayes,

408 U.S. 665 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Braunfeld v. Brown,

366 U.S. 599 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Calvary Chapel Dayton Valley v. Sisolak,

No. 19A1070, slip op. at 4-7, 591 U.S. ___

(2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Cantwell v. Connecticut,

310 U.S. 296 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Church of the Lukumi Babalu Aye, Inc. v.

Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 15, 17

iv

Cited Authorities

Page

City of Boerne v. Flores,

521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . 6, 7, 12, 16

City of Erie v. Pap’s A.M.,

529 U.S. 277 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Cohen v. Cowles Media,

501 U.S. 663 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Cox v. State of New Hampshire,

312 U.S. 569 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Doe v. Parson,

960 F.3d 1115 (8th Cir. 2020) . . . . . . . . . . . . . . . . . . . 27

Emp’t Div., Dep’t of Human Res. of Oregon v.

Smith,

494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . passim

Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246 (2020) . . . . . . . . . . . . . . . . . . . 18, 20, 24

Frazee v. Ill. Dep’t of Emp’t Sec.,

489 U.S. 829 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Goldman v. Weinberger,

475 U.S. 503 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Heffron v.

Int’l Soc’y for Krishna Consciousness, Inc.,

452 U.S. 640 (1981) . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

v

Cited Authorities

Page

Hobbie v.

Unemployment Appeals Comm’n of Fla.,

480 U.S. 136 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 13, 24

Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. EEOC,

565 U.S. 171 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

June Med. Servs. v. Russo,

140 S. Ct. 2103 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 24

Lyng v. Nw. Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) . . . . . . . . . . . . . . . . . . . . . 13, 14, 24

Minersville School Dist. v. Gobitis,

310 U.S. 586 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Our Lady of Guadalupe Sch. v.

Morrissey-Berru,

140 S. Ct. 2049 (2020) . . . . . . . . . . . . . . . . . . . . . . 25, 28

People v. Phillips,

Ct. Gen. Sess., City of N.Y. (June 14, 1813) . . . . . . . . 6

Perez v. Paragon Contractors, Corp.,

2014 WL 4628572 (D. Utah Sept. 11, 2014) . . . . . . . 29

vi

Cited Authorities

Page

Pierce v. Soc’y of Sisters of the Holy Names of

Jesus and Mary,

268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Plumbar v. Perrilloux,

2020 WL 3966876 (M.D. La. July 13, 2020) . . . . . . . 27

Prince v. Massachusetts,

321 U.S. 158 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 22

Reynolds v. United States,

98 U.S. 145 (1878 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Sherbert v. Verner,

374 U.S. 398 (1963) . . . . . . . . . . . . . . . . . . . . . . . passim

South Bay United Pentecostal Church v.

Newsom,

140 S. Ct. 1613 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Sunderland,

168 P.3d 526 (Haw. 2007) . . . . . . . . . . . . . . . . . . . . . . 27

Thomas v.

Review Bd. of the Ind. Emp’t Sec. Div.,

450 U.S. 707 (1981) . . . . . . . . . . . . . . . . . . . . . . . passim

Tony & Susan Alamo Found. v. Sec’y of Labor,

471 U.S. 290 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vii

Cited Authorities

Page

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Ballard,

322 U.S. 78 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Girod,

159 F. Supp. 3d 773 (C.D. Ky. 2015) . . . . . . . . . . . . . . 29

United States v. Lee,

455 U.S. 252 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

United States v. O’Brien,

391 U.S. 367 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Welsh v. United States,

398 U.S. 333 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Wisconsin v. Yoder,

406 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . . . . . . passim

Zubik v. Burwell,

136 S. Ct. 1557 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . 25

viii

Cited Authorities

Page

Statutes and Other Authorities

Ga. Const. of 1777, art. LVI . . . . . . . . . . . . . . . . . . . . . . 5

Ky. Const. of 1792, art. XII, § 3 . . . . . . . . . . . . . . . . . . . . 6

Ky. Const. of 1792, art. XII, § 4 . . . . . . . . . . . . . . . . . . . . 6

Pa. Const. of 1776, art. II . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Donald S. Lutz, The State Constitutional Pedigree of

the U.S. Bill of Rights, 22 Publius 19 (1992) . . . . . . . 6

Ellis West , The Case Against a Right to

Religion-Based Exemption, 4 Notre Dame J.

L., Ethics & Pub. Pol’y 591 (1990) . . . . . . . . . . . . . 4, 5

Frederick Mark Gedicks, Substantial Burdens:

How Courts May (and Why They Must)

Judge Burdens on Religion Under RFRA,

85 Geo. Wash. L. Rev. 94 (2017) . . . . . . . . . . . . . . . . 25

F r e d e r i c k M a rk G e d i c k s , An Unf i r m

Fo un d ation: The Regrettable

Indefensibility of Religious Exemptions,

20 U. A rk. Little Rock L. J. 555 (1998) . . . . . . . . . 23

I ra C. Lupu & R obert W. T uttle , S ecula r

Government, Religious People (2014) . . . . . . . . . . 8, 9

ix

Cited Authorities

Page

Ira C. Lupu & Robert W. Tuttle, The Mystery

of Unanimity in Hosanna-Tabor Evangelical

Lut her a n Chu rch & S chool v. EEOC,

20 Lewis & Clark L. Rev. 1265 (2017) . . . . . . . . . . . 28

Ira C. Lupu, Hobby Lobby and the Dubious

Ent e r p r i se of Reli g i o u s Ex e mpti o n s,

38 Harv. J. L. & Gender 35 (2015) . . . . . . . . . 8, 14, 29

James E. Ryan, Smith and the Religious Freedom

Restoration Act: An Iconoclastic Assessment,

78 Va. L. Rev. 1407 (1992) . . . . . . . . . . . . . . . . . . . . . . 14

James H. Hutson, Church and State in A merica:

The First T wo Centuries (2007) . . . . . . . . . . . . . . . . 3

James Oleske, Lukumi at Twenty: Legacy of

Uncertainty for Religious Liberty and Animal

Welfare Laws, 19 A nimal L. Rev. 295 (2013) . . . . . . 17

John Locke, Second Treatise of G overnment

17 (C.B. Macpherson ed. 1980) (1st ed. 1690) . . . . . . . 4

Philip Hamburger, A Constitutional Right

of Religious Exemption: An Histor ical

Perspective, 60 Geo. Wash. L. Rev. 915

(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7

Privileged Communications to Clergymen,

1 Cath. Law. 199 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . 6

x

Cited Authorities

Page

Thomas J. Curry, The First Freedoms: Church

a nd S tate in A merica to the Pa ssage of

the First A mendment (1987) . . . . . . . . . . . . . . . . . . . 5

William P. Marshall, In Defense of Smith

and Free Exercise Revisionism,

58 U. Chi. L. Rev. 308 (1991) . . . . . . . . . . . . . . . . . 7, 22

William P. Marshall, The Religious Freedom

Restoration Act: Establishment , Equal

Protection and Free Speech Concer ns,

56 Mont. L. Rev. 227 (1995) . . . . . . . . . . . . . . . . . 21, 22

Zalman Rothschild, Free Exercise’s Lingering

Ambiguity, 11 Cal. L. Rev. 282 (2020) . . . . . . . . . . . 17

1

INTEREST OF AMICI CURIAE1

Ira C. Lupu is the F. Elwood & Eleanor Davis

Professor of Law Emer itus, George Washing ton

University. Frederick Mark Gedicks is the Guy Anderson

Chair & Professor of Law, Brigham Young University.

William P. Marshall is the William Rand Kenan, Jr.,

Distinguished Professor of Law, University of North

Carolina. Robert W. Tuttle is the David R. and Sherry

Kirschner Berz Research Professor of Law and Religion,

George Washington University. All of them have been

studying and writing about the First Amendment’s

Religion Clauses since the 1980s, and they submit this

brief to explain why Employment Division, Department

of Human Resources of Oregon v. Smith, 494 U.S. 872

(1990), correctly held that the Free Exercise Clause

does not mandate religious exemptions from generally

applicable, religion-neutral laws.

SUMMARY OF ARGUMENT

Smith was correctly decided. The Free Exercise

Clause mandates evenhandedness in the government’s

treatment of religion, as reflected in contemporaneous

understandings at the time of the Founding and nearly

two centuries of caselaw that followed. Although the

Court departed from this longstanding interpretation in

the line of cases beginning with Sherbert v. Verner, 374

U.S. 398 (1963), in 1990 Smith correctly reaffirmed the

1. The parties have consented to the filing of this brief.

No counsel for any party authored this brief in whole or in part.

No person or entity other than amici and their counsel made

a monetary contribution intended to fund the preparation or

submission of this brief.

2

foundational principle that the Free Exercise Clause does

not require religious exemptions from neutral laws of

general applicability. Rather, it gives religious claimants

the right to be treated equally as compared with their

secular counterparts.

In addition, Smith provides a workable framework

for adjudicating Free Exercise challenges. Precedent

dictates that strict scrutiny of burdens on religious

practice is appropriate only where a law demonstrates

hostility towards a particular faith or religion generally,

or systematically disfavors religious claimants compared

to their fully analogous secular counterparts. The strict

scrutiny test that Petitioners advance is far more sweeping

and would often be impossible for the government to

satisfy. It would invite a regime of exemptions on demand,

ensuring widespread religious carve-outs from many laws.

It also would induce courts to return to the inconsistent,

unpredictable, and arbitrary case-by-case determinations

of Free Exercise claims that marked the period between

Sherbert and Smith.

Petitioners’ approach lacks solid constitutional footing

and would be judicially unmanageable. This Court should

reaffirm Smith.

ARGUMENT

I.

THE FREE EXERCISE CLAUSE DOES NOT

REQUIRE RELIGIOUS EXEMPTIONS FROM

GEN ER A LLY A PPLICA BLE , RELIGIONNEUTRAL LAWS

The Founders enacted the Religion Clauses of the

First Amendment to ensure that the government would

3

neither meddle in explicitly religious affairs nor treat

religious adherents better or worse than anyone else.

Accordingly, in adopting the Free Exercise Clause, they

intended to place limits on the government’s power to

regulate religious beliefs and worship practices, not to

require the government to grant religious exemptions

from generally applicable, religion-neutral laws. This

Court’s decision in Smith correctly reaffirmed the

understanding—which prevailed for most of our nation’s

history—that the Free Exercise Clause requires equal

treatment of religious and secular counterparts.

A.

Judicial recognition of religious exemptions

from neutral laws has no historical foundation

In the late eighteenth century, religious freedom

was generally understood to bar the government from

targeting religious belief and worship. See James H.

Hutson, C hurch and S tate in A merica : T he F irst

T wo Centuries 137 (2007) (“On one subject there was

unanimity: Governments must not interfere in the spiritual

realm, in men’s beliefs and modes of worship.”). The Free

Exercise Clause was therefore drafted to protect religious

belief and modes of worship from legal disadvantage—

not to exempt religiously-motivated conduct from

generally applicable laws. The line of Free Exercise

decisions beginning with Sherbert, in which this Court

first recognized a constitutionally mandatory religious

exemption, departed from the original understanding.

Smith properly corrected this constitutional error. 494

U.S. at 878-79. 2

2.  Between 1990 and 1996, both Professor Gedicks and

Professor Lupu published works that expressed criticism of Smith.

4

1.

Early Understandings and Practice

For nearly the first two hundred years of our country’s

existence, the Free Exercise Clause was understood

to prohibit only those laws that explicitly impinge on

religious practice. Ellis West, The Case Against a Right

to Religion-Based Exemption, 4 Notre Dame J. L.,

Ethics & Pub. Pol’y 591, 594 (1990). Free exercise of

religion was not originally understood to include a right

to violate generally applicable, religion-neutral laws, but

instead provided “the freedom to choose and practice

one’s religion (or no religion) without being subjected to

intentional, direct government coercion or influence.” Id.

at 623. Professor Hamburger likewise concluded that 18th

century “Americans did not authorize or acknowledge a

general constitutional right of religious exemptions from

civil laws.” Philip Hamburger, A Constitutional Right of

Religious Exemption: An Historical Perspective, 60 Geo.

Wash. L. Rev. 915, 917 (1992).

This concept of free exercise dovetailed with the

general understanding of “freedom” in the eighteenth

century. Early Americans, influenced by the thinking

of John Locke, understood “freedom” to mean freedom

from “arbitrary, unauthorized, unconstitutional law”—not

the ability to evade an otherwise legitimate law. West

at 624 & n.148 (citing John Locke, Second Treatise of

Government 17 (C.B. Macpherson ed. 1980) (1st ed. 1690)).

As Locke put it, “freedom of men under government is,

to have a standing rule to live by, common to every one of

that society, and made by the legislative power erected in

After careful study, both have embraced the view, originally

defended by Professor Marshall, that Smith is correct. Professor

Tuttle has always held that view.

5

it . . . and not to be subject to the inconstant, uncertain,

unknown, arbitrary will of another man . . . .” Id. at 624

n.148.

Against this backdrop, the drafters of the First

Amendment intended to place limits on the government’s

power to regulate religious beliefs and worship practices.

Id. at 624-27; see also T homas J. Curry, T he F irst

Freedoms: Church and State in A merica to the Passage

of the First A mendment 208 (1987) (“At the Virginia

Ratifying Convention, [James] Madison had stated that

the federal government had not the ‘shadow of a right . . . to

intermeddle with religion,’ and all Americans, Federalists

and Antifederalists, agreed with him.”).

The religious liberty clauses of early state constitutions,

which predate the federal Constitution, confirm this

understanding of religious freedom. State religious

liberty clauses typically took one of three forms. Some

reflected the view that the government could restrict both

worship and religious beliefs that it deemed dangerous;

these states expressly authorized disfavored treatment

for adherents of particular religions. Hamburger at 922;

e.g., Ga. Const. of 1777, art. LVI (expressly permitting

state to deny free exercise rights to religious exercise

“repugnant to the peace and safety of the State”). Many

others allowed for worship practices so long as they

did not “breach the peace,” meaning the government

could prohibit religious conduct that violated civil law.

Hamburger at 922. The Northwest Ordinance (passed

in 1787 to establish a government for the Northwest

Territory) took this approach by specifying that “[n]o

person demeaning himself in a peaceable and orderly

manner shall ever be molested on account of his mode

6

of worship or religious sentiments in the said territory.”

Id at 922-23. Finally, other state constitutions contained

“provisions condemning the punishment of individuals

‘on account’ of their religious beliefs.” Id at 923; e.g., Ky.

Const. of 1792, art. XII, §§ 3, 4; Pa. Const. of 1776, art.

II. None of these approaches exempted worship practices,

or religiously motivated conduct unrelated to worship,

proselytizing, or religious education, from general laws.

The Framers drew upon corresponding provisions

in the various state constitutions when drafting the Bill

of Rights. See Donald S. Lutz, The State Constitutional

Pedigree of the U.S. Bill of Rights, 22 Publius 19, 19-29

(1992). The absence of state law provisions requiring

religious exemptions from neutral laws thus strongly

supports a similar interpretation of the Free Exercise

Clause.

Jurisprudence from the decades following the

Founding confirms that the Free Exercise Clause was

not understood to require religious exemptions from

neutral laws. As Justice Scalia observed in City of

Boerne v. Flores, “[h]ad the understanding in the period

surrounding the ratification of the Bill of Rights been that

. . . various forms of accommodation . . . were constitutionally

required (either by State Constitutions or by the Federal

Constitution), it would be surprising not to find a single state

or federal case refusing to enforce a generally applicable

statute because of its failure to make accommodation.” 521

U.S. 507, 542 (1997) (concurring opinion). Yet, as Justice

Scalia noted, “none exists.”3 Id. at 543.

3. Justice Scalia identified only a single possible exception,

decided in a lower court and arising entirely under state law.

521 U.S. at 543 (citing People v. Phillips, Ct. Gen. Sess., City of

7

When first called upon to decide whether the Free

Exercise Clause requires religious exemptions from

generally applicable, religion-neutral laws, this Court

found that it does not. Reynolds v. United States, 98 U.S.

145 (1878); see also Smith, 494 U.S. at 879. As this Court

declared in Reynolds: “[t]o permit [religious exemptions

from neutral laws] 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.” 98 U.S. at 167.4

For eighty-five years following Reynolds, this Court

declined to grant special treatment to religious claimants

under the Free Exercise Clause, or to elevate Free Exercise

N.Y. (June 14, 1813), excerpted in Privileged Communications

to Clergymen, 1 Cath. Law. 199 (1955)). Although legislatures

have enacted religious exemptions throughout American history

(including exemptions to swearing oaths and participating in

military service), no court ever held that they were required

by the First Amendment. Hamburger at 929. Such statutory

accommodations thus do not shed light on what the Free Exercise

Clause requires. William P. Marshall, In Defense of Smith and

Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 323 (1991).

Justice Scalia made the same point in City of Boerne, noting that

the Constitution does not mandate religious exemptions, though

legislatures may grant them. See 521 U.S. at 541.

4.  Petitioners argue that the claimant in Reynolds sought

a religious exemption without regard to any countervailing

governmental interest and that Reynolds relied on reasoning

that is inconsistent with later precedent. Brief for Petitioners at

48-49, Fulton v. City of Philadelphia, No. 19-123 (filed May 27,

2020). Both points are irrelevant; Reynolds demonstrates this

Court’s historical understanding that the Free Exercise Clause

does not require religious exemptions from generally applicable,

religion-neutral laws.

8

claims over free speech claims and conscientious moral

objections to religion-neutral laws. See Minersville School

Dist. v. Gobitis, 310 U.S. 586 (1940) (rejecting Jehovah’s

Witnesses’ claim to a Free Exercise exemption from a

law requiring school children to salute the flag); Prince

v. Massachusetts, 321 U.S. 158 (1944) (rejecting Free

Exercise claim of Jehovah’s Witness convicted for violating

law that prohibited children from selling newspapers in

streets and public places). As Justice Rutledge wrote in

Prince, “[i]f . . . appellant seeks for freedom of conscience

a broader protection than for freedom of the mind, it may

be doubted that any of the great liberties insured by the

First Article can be given higher place than the others.”

Id. at 164; see also Ira C. Lupu, Hobby Lobby and the

Dubious Enterprise of Religious Exemptions, 38 Harv.

J. L. & Gender 35, 48-49 (2015).

Prior to Sherbert, religious claimants prevailed

on Free Exercise claims only when “considerations

of religious liberty informed more general claims of

personal liberty, instead of creating religiously exclusive

rights.” See Ira C. Lupu & Robert W. Tuttle, Secular

Government, Religious People 180, 183 (2014). In these

cases, the Court’s rulings protected rights sounding

in both religious and secular concerns like free speech

and due process. See, e.g., Pierce v. Soc’y of Sisters of

the Holy Names of Jesus and Mary, 268 U.S. 510 (1925)

(sustaining religious plaintiffs’ due process challenge to

a statute requiring all children to attend secular public

school); W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

624 (1943) (holding that requiring children in public

schools to salute the American flag infringes freedom of

speech and worship); Cantwell v. Connecticut, 310 U.S.

296 (1940) (finding that punishing Jehovah’s Witness

street proselytizer violates freedom of speech and Free

9

Exercise). Protecting religious liberty interests as part

of more general rights maintained crucial church-state

boundaries, as courts could base their decisions on broader

nonreligious principles, and therefore were not required

to evaluate questions of religiosity. See, e.g., Barnette,

319 U.S. at 634-35 (observing that the case did not “turn

on one’s possession of particular religious views or the

sincerity with which they are held”); see also Lupu &

T uttle, Secular G overnment, Religious P eople, at

188-89.

Consistent with the original understanding and

the Court’s historical precedents, these pre-Sherbert

decisions recognized that the Free Exercise Clause does

not require that the government exempt citizens from

generally applicable laws on the basis of their religious

beliefs. In 1961, however, this Court set the stage for

Sherbert’s interest-balancing test by evaluating a Free

Exercise exemption claim in terms of the burden on the

claimant’s religion and the availability of less burdensome

alternatives. See Braunfeld v. Brown, 366 U.S. 599 (1961);

see also Lupu & Tuttle, Secular Government, Religious

People, at 190-91. Two years later, in Sherbert, the Court

mistakenly brought into question two centuries of history

and precedent holding that the Free Exercise Clause

does not mandate religious exemptions from generally

applicable laws, thereby setting free exercise doctrine on

an unsustainable path.

2.

Sherber t a nd Yoder Diverged f rom

Historical Understandings and Precedent

In Sherbert, Adell Sherbert claimed that a state law

disqualifying her from unemployment benefits on the

basis of her religious objection to working on Saturdays

10

abridged her Free Exercise rights. 374 U.S. at 399-401.

This Court held that the First Amendment allowed such

disqualification only if it “represent[ed] no infringement by

the State of her constitutional rights of free exercise,” or if

“any incidental burden on the free exercise of appellant’s

religion [was] justified by a compelling state interest in

the regulation of a subject within the State’s constitutional

power to regulate.” Id. at 403 (internal quotation marks

and alterations omitted). The Court found that, by denying

Sherbert unemployment benefits without demonstrating

a countervailing compelling state interest, the state had

unconstitutionally burdened her Free Exercise rights.

Id. at 406-10.

The invocation of a “compelling interest” test

was unnecessary to decide the case. South Carolina

discriminated in favor of the majority of Christians

by protecting them against discharge for refusing to

work on Sundays. 374 U.S. at 406. This denominational

discrimination was a sufficient basis for upholding

Sherbert’s claim under the Court’s existing precedents

without importing strict scrutiny. Cf. id. (noting that

denominational discr imination “compounded the

unconstitutionality” of the treatment of Saturday

Sabbatarians.)

Instead, by mandating a religious exemption to a

generally applicable, religion-neutral law, Sherbert broke

sharply from the Court’s previously settled approach

to Free Exercise claims. See id. at 418 (Harlan, J.,

dissenting) (“Today’s decision is disturbing . . . in its

rejection of existing precedent . . . .”). For the first time, the

Sherbert Court abandoned its traditional approach (which

declined to grant special treatment to religious claimants)

and elevated the rights of a religious claimant over those

11

of her secular counterparts. See id. at 416 (Stewart, J.,

concurring in the result) (noting that, under the Court’s

decision, “the State must prefer a religious over a secular

ground for being unavailable for work . . . .”); id. at 422

(Harlan, J., dissenting) (“The State . . . must single out

for financial assistance those whose behavior is religiously

motivated, even though it denies such assistance to others

whose identical behavior . . . is not religiously motivated.”).

This Court’s decision in Wisconsin v. Yoder, 406

U.S. 205 (1972), deepened the break with the historical

understanding of the Free Exercise Clause. Respondents,

convicted for violating Wisconsin’s compulsory schoolattendance law, claimed that their convictions were invalid

under the Free Exercise Clause because sending their

children (aged 14-15) to school threatened their traditional

agrarian and religious way of life. Id. at 207-12. Citing

Sherbert for the proposition that a “regulation neutral

on its face may, in its application, nonetheless offend the

constitutional requirement for governmental neutrality

if it unduly burdens the free exercise of religion,” id. at

220, the Yoder Court determined that the compulsory

education law “would gravely endanger if not destroy

the free exercise of respondents’ religious beliefs,” id.

at 219. The Court rejected Wisconsin’s contention that

“its interest in its system of compulsory education is so

compelling that even the established religious practices

of the Amish must give way.” Id. at 221. Notably, the

Court framed the relevant state interest narrowly, as the

“interest in compelling the school attendance of Amish

children to age 16,” rather than the more “substantial”

interest of “requiring such attendance for children

generally.” Id. at 228-29. As the next section of this brief

demonstrates, the focus on the state’s interest in avoiding

an exemption for particular claimants, as distinguished

12

from its more general interest in advancing its policy

goals, would eventually prove to be among the elements

of Free Exercise law most subject to manipulation.

3.

Inconsistent Application of the Sherbert/

Yoder Standard Provoked a Restoration

of Traditional Free Exercise Principles

in Smith

Petitioners badly mischaracterize this Court’s Free

Exercise Clause jurisprudence between Sherbert in 1963

and Smith in 1990. Far from being stable and predictable,

see, e.g., Pet. Br. 50, it reflected a chaotic, results-oriented

approach, under which the Sherbert/Yoder standard was

applied selectively and arbitrarily—if at all. See generally

Smith, 494 U.S. at 882-84 (collecting Free Exercise cases

in which the Court declined to apply Sherbert).

Had the Court faithfully applied strict scrutiny during

this period, the government would have consistently lost.

The Sherbert/Yoder rule, after all, demanded that the

government have a compelling state interest in its policy

goals—not only generally, but as applied against a specific

group of religions claimants—and that the government

action be “the least restrictive means of achieving” that

compelling interest. See Thomas v. Review Bd. of the Ind.

Emp’t Sec. Div., 450 U.S. 707, 718 (1981). As this Court

has recognized, this standard “is the most demanding

test known to constitutional law.” City of Boerne, 521

U.S. at 534. Yet, despite facing what should have been a

nearly insurmountable standard, the government almost

always prevailed. Aside from Yoder, the only successful

claims relying solely on the Free Exercise Clause

involved eligibility for unemployment benefits—cases

squarely governed by Sherbert because they involved

13

“denials of unemployment compensation benefits to those

who have refused work on the basis of their religious

beliefs.” Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. 829,

832 (1989) (Free Exercise claimant who could not work

between sundown Friday and sundown Saturday for

religious reasons entitled to unemployment benefits); see

also Hobbie v. Unemployment Appeals Comm’n of Fla.,

480 U.S. 136 (1987) (Free Exercise claimant who could

not work Friday and Saturday evenings for religious

reasons entitled to unemployment benefits); Thomas,

450 U.S. 707 (Free Exercise claimant who could not work

in arms manufacturing for religious reasons entitled to

unemployment benefits).

Outside of that narrow context, the government won

in every case in this Court across a remarkably broad

range of Free Exercise claims. 5 The Petitioners and their

5.  See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) (denying claim that the government paving a

highway through grounds used for religious rituals violated the

Free Exercise Clause); O’Lone v. Estate of Shabazz, 482 U.S.

342 (1987) (denying claim that prison policy preventing Muslim

inmates from attending worship services violated the Free

Exercise Clause); Bowen v. Roy, 476 U.S. 693 (1986) (denying

claim that requiring a Social Security number in order to receive

certain benefits violated the Free Exercise Clause); Goldman v.

Weinberger, 475 U.S. 503 (1986) (denying claim that prohibiting

yarmulkes with Air Force uniforms violated the Free Exercise

Clause); Tony & Susan Alamo Found. v. Sec’y of Labor, 471

U.S. 290 (1985) (denying claim that application of the Fair

Labor Standards Act to religious foundation violated the Free

Exercise Clause); Bob Jones Univ. v. United States, 461 U.S. 574

(1983) (denying claim that stripping university, which prohibited

interracial dating and marriage, of its tax-exempt status violated

the Free Exercise Clause); United States v. Lee, 455 U.S. 252

(1982) (denying claim that requiring Amish employer to comply

14

amici barely mention these decisions, no doubt because

they disrupt Petitioners’ false narrative of doctrinal

stability and predictability. Yet the interregnum between

Sherbert and Smith is marked by this Court’s persistent

efforts to avoid the consequences of strict scrutiny. In part,

the Court accomplished this by categorically exempting

whole swaths of state action from strict scrutiny. See, e.g.,

Shabazz, 482 U.S. 342 (1987) (declining to apply strict

scrutiny to prison policy); Weinberger, 475 U.S. 503 (1986)

(declining to apply strict scrutiny to military policy). In

other contexts, the Court retreated from the narrow

conception of the government’s interest employed in Yoder,

instead crediting “the government’s wholesale interest in

refusing to entertain any exemption claims whatsoever” in

those contexts. Lupu, Dubious Enterprise, at 52; see also,

e.g., Lee, 455 U.S. at 261 (emphasizing need for uniform

social security policy and declining to exempt Amish

employers); Bob Jones Univ., 461 U.S. at 604 (stating

that government’s general interest in eliminating racial

discrimination “substantially outweighs” the burden that

denial of tax benefits places on university’s exercise of its

beliefs). In yet another case, the Court sidestepped strict

scrutiny by refusing to find a “substantial burden” on

religious practice from government development on public

lands that would have disturbed sacred Native American

ceremonial sites and devastated worship practices. Lyng,

485 U.S. at 447-53. These workarounds so diminished the

force of Sherbert and Yoder that, by the time of Smith,

little was left of them: Free Exercise jurisprudence had

been completely hollowed out.6

with social security requirements violated the Free Exercise

Clause).

6.  The lower courts tended to follow the pattern of working

around Sherbert and Yoder. See James E. Ryan, Smith and the

15

After these wholesale departures from strict scrutiny,

the Court eventually acknowledged that the standard

was thoroughly ill-suited to Free Exercise jurisprudence.

In Smith, the Court squarely addressed the pattern of

its Free Exercise decisions since Sherbert and Yoder.

Returning to the historical understanding and this

Court’s pre-Sherbert precedents, the Court held that

application of the Sherbert test to generally applicable

laws is inconsistent with the longstanding norm of not

requiring Free Exercise exemptions. Accordingly, the

Court rejected respondents’ claim that Oregon’s criminal

prohibition on the use of peyote (which did not target their

religious practice but made no exception for sacramental

use) violated the Free Exercise Clause, and held that the

Clause does not compel courts to grant exemptions from

generally applicable laws to individuals with religious

motivations for violating those laws. 494 U.S. at 878.

In declining to apply Sherbert and Yoder, the Court

emphasized that the unwieldiness of the test in those

cases had made them largely irrelevant. “Although we

have sometimes purported to apply the Sherbert test in

contexts other than [unemployment compensation],” the

Court explained, “we have always found the test satisfied”;

“[i]n recent years we have abstained from applying the

Sherbert test (outside the unemployment compensation

field) at all.” Id. at 883. Given Sherbert’s unworkability,

the Court returned to the stable foundation of its earlier

decisions, announcing “in accord with the vast majority

of our precedents,” it would “hold the [Sherbert] test

inapplicable” to generally applicable laws. Id. at 885. It

reaffirmed that holding in Church of the Lukumi Babalu

Religious Freedom Restoration Act: An Iconoclastic Assessment,

78 Va . L. Rev. 1407, 1416-1437 (1992).

16

Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), and in City of

Boerne, 521 U.S. at 514 (“Smith held that neutral, generally

applicable laws may be applied to religious practices

even when not supported by a compelling governmental

interest.”). As Smith prescribed, Sherbert has since been

tightly confined to situations “where the State has in place

a system of individual exemptions”; under such regimes,

the state “may not refuse to extend . . . to cases of ‘religious

hardship’ without compelling reason.” 494 U.S. at 884

(citing Bowen v. Roy, 476 U.S. at 708).

With this significant cabining of Sherbert, Smith

rejected the principle that any generally applicable,

religion-neutral government regulation “may, in its

application, nonetheless offend the constitutional

requirement for governmental neutrality if it unduly

burdens the free exercise of religion.” Yoder, 406 U.S. at

220. Smith thus returned the law of religious exemptions

to the original understanding and long-controlling

application of the Free Exercise Clause. 494 U.S. at

885 (“To make an individual’s obligation to obey [a

generally applicable criminal law] contingent upon the

law’s coincidence with his religious beliefs, except where

the State’s interest is ‘compelling’ . . . contradicts both

constitutional tradition and common sense.”).

B. Smith correctly held that the Free Exercise

Clause does not create a right to exemption

from general laws, but rather protects the

right to be treated equally with one’s secular

counterparts

The rule set forth in Smith and its progeny faithfully

applies the Constitution’s mandate of evenhandedness in

the government’s treatment of religion and is consistent

17

with other First Amendment protections. As this Court

soon recognized in Lukumi, 508 U.S. 520, the concepts

of general applicability and neutrality toward religion

provide the required constitutional protection against

government departures from evenhandedness. Lukumi

involved a set of local ordinances gerrymandered to apply

exclusively to the Santeria faith’s practices of animal

sacrifice. Id. at 527. This unconstitutional gerrymander

reflected hostility to the Santerian faith, rather than any

general policy about cruelty to animals, and therefore

violated constitutional norms against singling out religious

conduct for disfavor. Id. at 535-36. Lukumi thus made

clear that government action that targets a particular

religion or religion generally is not subject to the Smith

rule. Because such actions are neither religion-neutral nor

generally applicable, the burden they impose on religious

exercise constitutes religious discrimination, properly

subject to strict scrutiny. Id. at 532-33.

The line between religion-neutral laws subject to

minimal review under Smith, and non-neutral laws subject

to strict review under Lukumi, has been the subject of

considerable dispute.7 Some have contended that the

presence of any secular exceptions to a law destroys its

general applicability and religious neutrality, 8 thereby

7.  For a careful review of the competing positions, see James

Oleske, Lukumi at Twenty: Legacy of Uncertainty for Religious

Liberty and Animal Welfare Laws, 19 A nimal L. Rev. 295 (2013);

Zalman Rothschild, Free Exercise’s Lingering Ambiguity, 11 Cal.

L. Rev. 282 (2020).

8.  See Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070,

slip op. at 4-7, 591 U.S. ___ (2020) (Kavanaugh, J., dissenting)

(arguing that the state must have a compelling interest in treating

religious entities worse than any secular entity).

18

negating the Smith rule. This approach would thoroughly

undermine Smith rather than sensibly apply its premises.

Most laws have exceptions of some kind; many laws also

restrict their application to activities of certain sizes and

kinds. If a single exception from a law or the slightest

limitation of its scope is enough to destroy its general

applicability, then Smith would rarely govern. Once

courts head down this path, legitimate and substantial

government interests will be regularly subordinated to

religious exemption claims, because any exception or

limitation in scope will undermine the state’s position that

its interest is compelling.

In order to maintain the constitutionally appropriate

relationship between the Smith principle and the Lukumi

exception, this Court should require a religious claimant to

show that its interests are being impermissibly disfavored

compared to those engaged in analogous secular activity.

To make that show ing, a religious claimant must

demonstrate that the law’s treatment of religious actors

reveals hostility to a particular faith, see Lukumi, or

discriminates against religion generally, see Espinoza

v. Mont. Dep’t of Revenue, 140 S. Ct. 2246 (2020). In the

absence of either showing, it is constitutionally appropriate

to presume that the state has not discriminated against

religion.

A cogent example is this Court’s treatment of state

regulation of religious gatherings during the COVID-19

pandemic. Chief Justice Roberts’ concurring opinion

in South Bay United Pentecostal Church v. Newsom

addressed the appropriate considerations:

A lt hough Ca l i for n ia’s g u idel i nes pla ce

restr ictions on places of worship, those

19

restrictions appear consistent with the Free

Exercise Clause of the First Amendment.

Similar or more severe restrictions apply to

comparable secular gatherings, including

lectures, concerts, movie showings, spectator

sports, and theatrical performances, where

large groups of people gather in close proximity

for extended periods of time. And the Order

exempts or treats more leniently only dissimilar

activities, such as operating grocery stores,

banks, and laundromats, in which people

neither congregate in large groups nor remain

in close proximity for extended periods.

140 S. Ct. 1613 (2020) (Roberts, C.J., concurring).

As this analysis reveals, the reach of Smith is not

limited to laws that apply identically to everyone, with

no differences recognized. Rather, the touchstone is the

relevant secular comparator to religious activity: Smith

applies to laws and policies that treat religious conduct

similarly to secular conduct that has the same implications

for relevant government interests. Such laws and policies

are “not aimed at the promotion or restriction of religious

beliefs.” Smith, 494 U.S. at 879 (internal quotation marks

omitted) (quoting Gobitis, 310 U.S. at 594-95).9

9.  The Court’s disposition of Calvary Chapel Dayton Valley,

591 U.S. ___, can best be understood as involving the application

of a similar principle. Nevada had classified different gatherings

in ways that reflect its assessment of the risks of spreading

COVID-19 associated with particular activities, secular or

religious. The state’s permission for larger gatherings in casinos

than houses of worship reflected, among other things, a choice

to “reopen a highly regulated industry,” because the state could

impose “significant punishment” on the gaming industry if it did

20

This approach fully realizes the aim of the Free

Exercise Clause—to “protect[] religious observers

against unequal treatment and against laws that impose

special disabilities on the basis of religious status,”

Espinoza, 140 S. Ct. at 2254 (quoting Trinity Lutheran

Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019

(2017) (internal quotation marks and alterations omitted)),

and forbid discrimination against the belief or worship

practices of any particular faith, see Smith, 494 U.S.

at 877-78 (“It would doubtless be unconstitutional, for

example, to ban the casting of statues that are to be used

for worship purposes, or to prohibit bowing down before

a golden calf.” (internal quotation marks omitted)). In

contrast, subjecting denial of religious exemption claims

to strict scrutiny would warp broader antidiscrimination

doctrine, ensuring unequal treatment for religious

claimants by “excus[ing]” them from complying with

otherwise valid laws. See Smith, 494 U.S. at 879.

Moreover, Smith coheres with the rest of the First

Amendment. Free speech principles, for example, do not

protect speech against “incidental burdens” from generally

applicable, speech-neutral laws. See, e.g., Cohen v. Cowles

Media, 501 U.S. 663, 669-70 (1991) (collecting cases and

stating that “generally applicable laws do not offend the

First Amendment simply because their enforcement

against the press has incidental effects on its ability to

not comply with COVID-19 parameters. Brief for Respondents at

18, Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. ___ (2020)

(No. 19A-1070) (filed July 15, 2020). In any event, the church did

not meet its burden of showing that it was being treated differently

because of its religious character. Nevada treated churches and

movie theaters alike, limiting both to the lesser of 50% capacity or

50 persons gathered in a single room, subject to social distancing

requirements.

21

collect and report the news”); Branzburg v. Hayes, 408

U.S. 665, 682 (1972) (“It is clear that the First Amendment

does not invalidate every incidental burdening of the press

that may result from the enforcement of civil or criminal

statutes of general applicability.”).10

In contrast, applying strict scrutiny to claims

for religious exemptions departs from broader First

Amendment jurisprudence. This Court has consistently

upheld content-neutral speech restrictions that incidentally

burden the exercise of religion without requiring narrow

tailoring. See, e.g., Heffron v. Int’l Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640 (1981); Cox v. State

of New Hampshire, 312 U.S. 569 (1941). In such cases,

“[b]ecause the class of religious speakers is likely to be

more limited in number than the class of all speakers,

the state’s interest in proscribing the expression of only

religious claimants may not be deemed as compelling

as when measured against the class of all speakers.”

William P. Marshall, The Religious Freedom Restoration

Act: Establishment, Equal Protection and Free Speech

Concerns, 56 Mont. L. Rev. 227, 245 (1995). Strict scrutiny

would mean that a person challenging a restriction of

speech under the auspices of a religious mandate would

be more likely to succeed than one who challenged the

same law for non-religious reasons. Id. A significant

imbalance would inevitably result: religious speech would

10.  United States v. O’Brien, 391 U.S. 367 (1968), is not to

the contrary. In cases evaluating content-neutral restrictions on

conduct that involves symbolic speech, this Court has consistently

ruled that government actions were constitutionally permissible

despite incidental limitations on some expressive activity. In

addition to the holding in O’Brien itself, see, e.g., Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 567-70 (1991); City of Erie v. Pap’s

A.M., 529 U.S. 277, 296 (2000).

22

flourish while secular speech would be stifled, in violation

of “the seminal First Amendment principle that there

is an equality in the realm of ideas.” Id. at 244; see also

Heffron, 452 U.S. at 653 (“[N]onreligious organizations .

. . are entitled to rights equal to those of religious groups

to enter a public forum and spread their views.”); Prince,

321 U.S. at 164 (the First Amendment does not provide

“freedom of conscience a broader protection than for

freedom of the mind”).

Interpreting the Free Exercise Clause to require

religious exemptions from generally applicable laws

would present decisionmakers with the additional,

practical problem of distinguishing between beliefs that

are religious and those that are philosophical, moral, or

social. Thomas, where the United States and Indiana

Supreme Courts disagreed over whether the petitioner’s

objection to manufacturing armaments was religious

or philosophical, illustrates the problem. Marshall, In

Defense of Smith, at 319 n.59 (citing Thomas, 450 U.S.

at 714-15).

Finally, amici curiae in support of Petitioners

argue that religious liberty is insufficiently protected by

“perfect uniformity in the application of a law.” Brief for

The Church Of Jesus Christ Of Latter-Day Saints et al.

as Amici Curiae Supporting Petitioners at 31, Fulton v.

City of Philadelphia (No. 19-123) (filed June 3, 2020). But

equality under the law is a core constitutional principle.

The suggestion that the free exercise of religion and

religiously motivated conduct stand alone as the most

favored First Amendment activity, more worthy of

protection than analogous claims of conscience and the

right to the freedom of speech, is in tension with our

23

constitutional tradition. See Welsh v. United States, 398

U.S. 333 (1970) (holding that the conscientious objector

provision of Universal Military Training and Service Act

should be construed to exempt from military service those

whose moral, ethical, or religious beliefs preclude their

participation in war.); see also Frederick Mark Gedicks,

An Unfirm Foundation: The Regrettable Indefensibility

of Religious Exemptions, 20 U. A rk. Little Rock L. J.

555 (1998).

*

*

*

For the foregoing reasons, both history and logic

demonstrate that the Free Exercise Clause does not

require religious exemptions from generally applicable,

religion-neutral laws. Smith was correctly decided.

II. REPLACING SMITH WITH PETITIONERS’

STRICT SCRUTINY TEST WOULD UNDERMINE

JUDICIAL ADMINISTRATION OF THE LAW

AND CREATE A REGIME OF EXEMPTIONS ON

DEMAND

Petitioners ask this Court to “revisit” Smith and

replace its clear, administrable rule with a “strict scrutiny”

test modeled on “RFRA, RLUIPA, state RFRAs, and the

Sherbert/Yoder line of cases . . . .” Pet. Br. 50. Petitioners

conspicuously fail to describe or propose the particulars

of an administrable test. They do not explain how courts

could apply a strict scrutiny test with more doctrinally

sound and consistent results than the unpredictable Free

Exercise cases of the 1980s. See, e.g., Pet. Br. 50-52. Nor

can they. Replacing Smith with a strict scrutiny test of the

sort Petitioners seek would be disastrous for both judicial

administrability and substantive constitutional norms.

24

A.

Petitioners’ test would inject inconsistency

and unpredictability into a coherent and

administrable area of law

Smith and its progeny provide a clear, administrable

rule for adjudicating claims for religious exemptions.

Petitioners, however, urge the Court to replace Smith

with a strict scrutiny test that would require courts to

balance religious burdens against the state’s regulatory

interest. Replacing Smith with Petitioners’ test would

necessitate a “judgment-by-judgment analysis” of Free

Exercise protections that this Court has explicitly

rejected. Espinoza, 140 S. Ct. at 2260. Moreover, the

balancing test Petitioners suggest invites inconsistent

results and could disadvantage religions outside the

Judeo-Christian tradition. Compare Lyng, 485 U.S. at

452-57 (refusing to apply Sherbert/Yoder to government

interference with Native American spiritual site on public

land), and Bowen, 476 U.S. at 693 (declining to extend

Sherbert to Native American religious belief on grounds

it implicated governmental, not individual, conduct), with

Hobbie, 480 U.S. at 141-42 (rejecting Bowen’s reasoning

to grant religious exemption to Seventh-day Adventist).

This Court’s Free Exercise and contemporary

RFRA jurisprudence illustrate the difficulty of defining

a “substantial burden” on free exercise of religion,

underscoring the inconsistency, uncertainty, and

unworkability of Petitioners’ test. A court’s “narrow

function” in reviewing a religious exemption claim is to

determine only whether an individual’s asserted religious

belief represents an “honest conviction,” not to decide its

validity or worth. Thomas, 450 U.S. at 716; cf. June Med.

Servs. v. Russo, 140 S. Ct. 2103, 2136 (2020) (Roberts,

C.J., concurring in the judgment) (noting that courts

lack any “plausible” way to “objectively assign weight

25

to . . . imponderable values”). This Court repeatedly has

“warned that courts must not presume to determine . . .

the plausibility of a religious claim.” Smith, 494 U.S. at 887

(collecting cases).11 Indeed, after this Court’s decision in

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014),

claimants have become their own judge of what counts as a

substantial burden on their religious exercise, and courts

may not review a plaintiff’s self-identified religious beliefs

for anything other than sincerity. Id. at 725 (stating that,

where RFRA plaintiffs “sincerely believe that providing

the insurance coverage demanded by the HHS regulations

lies on the forbidden side of the line . . . it is not for [the

Court] to say that their religious beliefs are mistaken

or insubstantial.”); see also Frederick Mark Gedicks,

Substantial Burdens: How Courts May (and Why They

Must) Judge Burdens on Religion Under RFRA, 85 Geo.

Wash. L. Rev. 94 (2017) (noting Zubik v. Burwell, 136

S. Ct. 1557 (2016), “left undecided whether courts may

adjudicate the substantiality of burdens on religion in

light of the religious-question doctrine” and underscoring

the doctrinal consequences of “entrust[ing] the question”

to religious claimants “so self-interested in the answer,

however sincere their belief”); Hobby Lobby, 573 U.S.

at 760 (Ginsburg, J., dissenting) (“[T]oday’s decision

elides entirely the distinction between the sincerity of a

challenger’s religious belief and the substantiality of the

burden placed on the challenger.”).

11.  See also Our Lady of Guadalupe Sch. v. MorrisseyBerru, 140 S. Ct. 2049, 2069 (2020) (rejecting argument that

would require “courts to delve into the sensitive question of what

it means to be a ‘practicing’ member of a faith”); Smith, 494 U.S.

at 887 (“Judging the centrality of different religious practices

is akin to the unacceptable business of evaluating the relative

merits of differing religious claims.” (internal quotation marks

and citation omitted)).

26

Overruling Smith, and imposing a constitutional

framework on all state and local policies akin to that in

Sherbert-Yoder and RFRA, will replicate and exacerbate

the difficulties in judicial administration found in those

contexts.

B. Petitioners’ test would invite exemptions “on

demand”

If, as one would expect, the Hobby Lobby Court’s

approach to “substantial burdens” under RFRA feeds

back into Free Exercise adjudication, religious exemption

claims will routinely trigger the strict scrutiny standard

that Petitioners advance. And the Hobby Lobby Court’s

approach to the Sherbert/Yoder standard would be nearly

impossible for governments to overcome, resulting in

widespread religious exemptions to generally applicable

laws, and diminishing the government’s ability to

effectively regulate conduct.

Strict scrutiny has proven onerous in the RFRA

context in part because there is nearly always a less

restrictive means to accomplish the Government’s goal—

even if it imposes significant expense on the taxpayer. See

Hobby Lobby, 573 U.S. at 730; see also id. at 766 (Ginsburg,

J., dissenting) (“[W]here is the stopping point to the ‘let

the government pay’ alternative? . . . [T]he Court cannot

easily answer that question . . . .”). And this standard is

particularly difficult to satisfy because the government’s

interest is balanced against the impact on a few religious

objectors. The state will rarely succeed in arguing that

its interests—even when compelling—will be undermined

by granting an exemption to a handful of objectors. See

Yoder, 406 U.S. at 235-36 (finding that the state failed

to adequately show “how its admittedly strong interest

27

in compulsory education would be adversely affected by

granting an exemption to the [plaintiffs]”).

Jettisoning Smith in favor of a stringent, RFRA-like

standard for Free Exercise claims would make virtually

every law vulnerable to a Free Exercise challenge, and

open the floodgates to “religious exemptions from civic

obligations of almost every conceivable kind,” Smith, 494

U.S. at 888. Under such a standard, it is easy to foresee

religious exemptions to applications of criminal law, tort

law, child welfare law, marriage and divorce law, labor and

employment law, abortion regulation, and so on. Recent

challenges to generally applicable laws, routinely denied

now under Smith and its progeny, would be vindicated

under strict scrutiny, vividly foreshadowing the burden

on the courts and on legitimate government interests

under a jurisprudence of exemptions “on demand.” See,

e.g., Doe v. Parson, 960 F.3d 1115 (8th Cir. 2020) (denying

Satanic Temple member’s free exercise challenge to

Missouri’s informed consent to abortion law); State v.

Sunderland, 168 P.3d 526 (Haw. 2007) (denying Cannabis

Ministry member’s claim for exemption from state drug

law); Plumbar v. Perrilloux, 2020 WL 3966876 (M.D.

La. July 13, 2020) (denying religious claimants’ motion

for injunctive relief, on Free Exercise grounds, against

Louisiana’s cockfighting prohibition).

Under Petitioners’ test, courts faced with such claims

could avoid applying strict scrutiny only on the grounds

that a claim is “so bizarre, so clearly nonreligious” as to be

beyond the ambit of the First Amendment. Thomas, 450

U.S. at 715. This escape valve will necessarily invite courts

to become “arbiters of scriptural interpretation”—a role

that Thomas purported to reject, id. at 716—by assessing

the reasonableness of claimed religious beliefs, a task from

28

which courts should be constitutionally barred, see United

States v. Ballard, 322 U.S. 78, 92 (1944) (Jackson, J.,

dissenting) (“[A]s a matter of either practice or philosophy,

I do not see how we can separate an issue as to what is

believed from considerations as to what is believable.”).

As this Court has recognized repeatedly, courts are

particularly ill-suited to resolve such questions, which

entangle religion and state in ways that compromise both.

See, e.g., Our Lady of Guadalupe Sch., 140 S. Ct. at 2061

(emphasizing “church independence in matters of faith and

doctrine”); Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. EEOC, 565 U.S. 171, 188-89 (2012) (underscoring

constitutional prohibition on “government involvement

in . . . ecclesiastical decisions”).12 And judicial review of

reasonableness would inevitably privilege more familiar

religious beliefs at the expense of less-familiar religious

beliefs, a result that is anathema to the Free Exercise

Clause. The standard for which Petitioners advocate would

thus perversely render minority beliefs disproportionately

vulnerable to suppression.

Petitioners point to RFRA’s strict scrutiny standard

as an exemplar of what the Court should adopt in place

12.  Adjudication of the “ministerial exception” recognized

in Hosanna-Tabor and Our Lady of Guadalupe School does not

entail any balancing of state interests against competing claims

of ecclesiastical freedom. As the Chief Justice noted in HosannaTabor, the First Amendment has already “struck the balance.”

565 U.S. at 196. See generally Ira C. Lupu & Robert W. Tuttle,

The Mystery of Unanimity in Hosanna-Tabor Evangelical

Lutheran Church & School v. EEOC, 20 Lewis & Clark L. Rev.

1265 (2017) (arguing that Hosanna-Tabor rests entirely on the

longstanding doctrine of judicial abstention from decision of

exclusively ecclesiastical questions, and its unanimity is therefore

no mystery at all).

29

of Smith. E.g., Pet. Br. 18, 38-39, 50. But experience

demonstrates that if a RFRA-like standard were endowed

with constitutional dimensions, it would diminish the

power of state and local governments to protect their

citizens. See, e.g., United States v. Girod, 159 F. Supp. 3d

773 (C.D. Ky. 2015) (RFRA barred U.S. Marshals Service

from photographing Amish detainee as part of standard

processing procedure); Perez v. Paragon Contractors,

Corp., 2014 WL 4628572 (D. Utah Sept. 11, 2014) (RFRA

barred the Department of Labor from questioning a

fundamentalist Mormon about the inner workings of

his sect during child labor investigation). If Petitioners’

view were to prevail, lower courts would face a lose-lose

choice. They could either hamstring local governance

and undermine the rule of law, or sacrifice uniformity

and predictability for pre-Smith-style workarounds that

enable governments to exercise legitimate police powers.13

This Court should not relaunch such a regime.

*

*

*

In the three decades since Smith, the decision has

provided a clear, administrable approach that is consistent

with First Amendment principles and does not impose an

unreasonable barrier to government action. Petitioners’

test, on the other hand, poses manifold threats. It would

resurrect a highly subjective case-by-case approach to

Free Exercise claims, force courts to take up ecclesiastical

questions they have long disclaimed, and generate

13.  Pre-Hobby Lobby RFRA jurisprudence provides a

blueprint for such workarounds. See Lupu, Dubious Enterprise,

at 60-61 & n.118 (documenting persistent workarounds in federal

Courts of Appeals). Similarly, state courts often smuggled freeexercise workarounds into state RFRA applications. Id. at 74.

30

inconsistent applications of the “substantial burden” test.

Petitioners’ test would stack the deck heavily in favor of

religious claimants, wreaking havoc on the affairs of state

and local governments. It would flout the Constitution’s

mandate for evenhandedness by elevating religious

claimants above all secular counterparts. Petitioners’ test

would produce a profoundly unworkable body of law, under

which religious exemptions from a wide array of statutes

could be readily obtained. These dire consequences

underscore that Smith should not be “revisited,” but

reaffirmed.

CONCLUSION

This Court should affirm.

Respectfully submitted,

David S. Flugman

Counsel of Record

Faith E. Gay

Caitlin J. Halligan

David A. Coon

Selendy & Gay PLLC

1290 Avenue of the Americas

New York, New York 10104

(212) 390-9000

dflugman@selendygay.com

Counsel for Amici Curiae