Amicus Curiae Brief — Melissa Elaine Klein, et vir, Petitioners v. Oregon Bureau of Labor and Industries
Supreme Court briefOct 6, 2022
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IN THE
Supreme Court of the United States
MELISSA ELAINE KLEIN AND
AARON WAYNE KLEIN,
Petitioners,
v.
OREGON BUREAU OF LABOR AND INDUSTRIES,
Respondent.
On Petition for Writ of Certiorari to the Oregon
Court of Appeals
Brief for Amicus Curiae
CONSTITUTIONAL ATTORNEYS
In Support of Petitioners
JOHN A. EIDSMOE
Counsel of Record
TALMADGE BUTTS
CONSTITUTIONAL ATTORNEYS
One Dexter Avenue
Montgomery, AL 36104
(334) 324-1812
eidsmoeja@juno.com
talmadge@morallaw.org
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................... iii
INTEREST OF AMICUS CURIAE .............. 1
SUMMARY OF ARGUMENT ........................ 2
ARGUMENT ......................................................... 4
I.
The traditional Judeo-Christian
view of marriage has occupied a
favored position in American law ............ 4
II.
Because religious freedom is the
first and foremost right of the Bill
of Rights, infringements upon free
exercise of religion should be
accorded “strict scrutiny” .............................5
A. The Biblical Foundations of
Religious Liberty ................................... 6
B. The Reformation Foundations
of Religious Liberty .............................. 8
C.
The Colonial Foundations of
Religious Liberty ................................. 12
ii
III.
Employment Division v. Smith
does not do
justice
to
the
Framers’ vision of religious liberty ..... 15
IV.
This case clearly qualifies as a
hybrid-rights exception to Smith.............. 25
CONCLUSION ................................................... 29
iii
TABLE OF AUTHORITIES
Page
Cases
Boerne v Flores,
521 U.S. 507 (1997) ....................................... 18
Bowers v. Hardwick,
478 U.S. 186 (1986) .................................. 22-23
Cantwell v. Connecticut,
310 U.S. 296 (1940) .................................... 16-17
Church of the Lukumi Babalu Aye,
Inc., v. City of Hialeah,
508 U.S. 520 (1993) .................................. 26-27
Davis v. Beason,
133 U.S. 333 (1890) ......................................... 4
Employment Division v. Smith,
494 U.S. 872 (1990) .............................. passim
Gonzales
v.
O
Centro
Espirita
Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ....................................... 18
McGowan v Maryland,
366 U.S. 420 (1961) ........................................ 5
Meek v. Pittinger,
421 U.S. 349 (1975) ....................................... 15
iv
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ..................................... 2
People v. Ruggles,
8 Johns. 290 (N.Y. 1811) ................................ 4
Reynolds v. United States,
98 U.S. 145 (1878) ........................................... 4
Sherbert v. Verner,
374 U.S. 398 (1963) ................................. 17, 20
Updegraph v. Commonwealth,
11 Serg. & Rawle 394 (Pa. 1824) .................. 4
Vidal v. Girard’s Executors,
43 U.S. 127, 2 How. 127 (1844) ..................... 4
United States v. Windsor,
570 U.S. 744 (2013) ...................................... 1-2
Wisconsin v. Yoder,
406 U.S. 205 (1972) ............................. 17-19, 24
Zorach v. Clauson,
343 U.S. 306 (1952) ......................................... 5
Constitutions, Statutes, and Regulations
Religious Freedom Restoration Act of
1993, 42 U.S.C. §2000bb-3 ............... 18, 23-24
Public Law 97-280...................................................6
v
U.S. Const. amend. I ............................... passim
Colonial Constitutions
New York ........................................................ 12
Virginia ........................................................... 13
Other Authority
Charles S. Hyneman and Donald S.
Lutz, American Political Writing
during the Founding Era (1983) ...... 6-7, 11
Donald S. Lutz, The Relative influence of
European
Writers
on
Late
Eighteenth Century
American
Political
Thought, Amer. Pol. Sci.
Rev. 189 (1984) ............................................. 6-7
Eran Shalev, American Zion: The
Old
Testament as a Political Text from
the Revolution to the Civil War
(2013) .................................................................7
The Thirteenth,
Greatest of Centuries (2nd ed. 1909) ..........8
James
J.
Walsh,
John Bunyan on Individual Soul
Liberty, www.pastorjack.org/?tag=
individual-soul- liberty ...............................10
John
Locke,
Toleration
A
Letter
Concerning
(1688-89)
(Patrick
Romanell, ed. 1955) ....................................... 11
vi
John Witte, Jr., The Essential Rights
and Liberties of Religion in the
American
Constitutional
Experiment, 71 Notre Dame L. Rev.
371 (1966) ....................................................... 19
Joseph Story, A Discourse Pronounced
Upon the Inauguration of the
Author, as Dane Professor of Law
at Harvard University (1829) ....................... 4
L.
John
Van
Til,
Liberty
of
History of a
Conscience: The
Puritan Idea (1992) .......................... 11-12, 14
H.
Tribe,
American
Constitutional Law (1978) ............................ 16
Laurence
Leo
Pfeffer,
Church,
State
and
F reedom (1953) ............................................... 15
Lib. of Cong., Religion and the Founding
of the American Republic,
https://www.loc.gov/exhibits/religion/rel06
.html ......................................................................13
Loraine
The
Reformed
Predestination 382
Boettner,
Doctrine
of
(1972) .................................................................9
Michael W. McConnell, Free Exercise
Revisionism
Decision, 57
and
the
Smith
U. Chi. L. Rev. 1109 (1990). ...................... 19
Michael W. McConnell, The Origins and
vii
Historical Understanding of Free
Exercise of Religion, 103 Harv. L.
Rev. 1409 (1990). ............................................. 19
Neomi Rao, The Trouble with Dignity
and Rights of Recognition, 99 Va. L.
Rev. Online 29 (2013) ................................... 23
Three
Concepts
Constitutional
of
Dignity
in
Law, 86 Notre
Dame L. Rev. 183 (2011) .............................. 23
On the Use and Abuse of Dignity in
Constitutional Law, 14 Colum. J.
Eur. L. 201 (2008) ........................................... 23
Oliver O’Donovan & Joan Lockwood
O’Donovan,
From
Irenaeus
to
Grotius: A Sourcebook in Christian
Political Thought (1999) .................................. 8
Here I Stand: A
Life of Martin Luther (1950)........................9
Roland
Bainton,
State Religious Freedom Restoration
Acts, National Conference of State
Legislatures (May 4, 2017) .......................... 19
Stephen H. Aden and Lee J. Strang,
When a ‘Rule’ Doesn’t Rule: the
Failure of the Oregon Employment
Division v. Smith “Hybrid Rights
Exception,” 108 Penn St. L. Rev. 573
(2002). .............................................................. 27
The Declaration of Independence .................... 5-7
viii
The Holy Bible ................................................ 2, 7-8
The Portable Library of Liberty, http://files.
libertyfund.org/pll/index.html ........................ 10
Trinity Hymnal (1999) ........................................ 10
1
INTEREST OF AMICUS CURIAE1
Amicus Curiae Constitutional Attorneys are
two attorneys in Montgomery, Alabama, who
believe the Constitution should be interpreted
as its Framers intended, and who believe the
Framers intended the God-given right to
religious liberty is the first and foremost of our
constitutional
freedoms.
Attorney
John
Eidsmoe is admitted to practice in Iowa and
serves as Professor of Constitutional Law for
the Oak Brook College of Law and
Government Policy. Attorney Talmadge Butts
is licensed to practice law in the State of
Alabama and serves as Counsel for a legal
foundation. The Constitutional Attorneys have
an interest in this case because they believe
that Petitioners’ case is an example of a
recurring problem in the clash between
religious liberty and same-sex relations and
that religious liberty should prevail.
1 Pursuant to Rule 37.2, Attorney Eidsmoe originally filed notice of
intent to file on September 12, 2022, on behalf of the Foundation
for Moral Law, but Attorneys Eidsmoe and Butts subsequently
decided to file as Constitutional Attorneys instead. Counsel of
record for all parties received notice of intent to file this brief at
least ten days before the due date. Pursuant to Rule 37.2, all parties
have consented to the filing of this brief. Pursuant to Rule 37.6, no
party or party’s counsel authored this brief in whole or in part, or
contributed money that was intended to fund its preparation or
submission; and no person other than the amicus curiae, its
members, or its counsel, contributed money that was intended to
fund the preparation or submission of this brief.
2
SUMMARY OF ARGUMENT
Melissa and Aaron Klein operated a bakery,
Sweetcakes by Melissa, in Gresham, Oregon,
until they were forced to close rather than
violate their religious convictions by designing
and preparing a cake to celebrate a same-sex
wedding.
Rachel Cryer and her mother came to
Sweetcakes to order a wedding cake.2 After
being informed that the wedding involved two
brides, Aaron Klein explained politely that because
of their religious convictions they could not design
and prepare a cake for a same-sex wedding.
Shortly thereafter, Rachel’s mother returned alone
and initiated a discussion with Aaron about the
Bible and same-sex marriage. She said she had
once shared his beliefs but “her truth had
changed” and she now believes the Bible is silent
about same-sex relationships. Aaron responded by
quoting Leviticus 18:22: “Thou shalt not lie with a
male as one lies with a female; it is an
abomination.” Rachel’s mother ended the
conversation, returned to the car, and told Rachel
that Mr. Klein had called her an “abomination.” In
fact, Mr. Klein had only quoted the Bible in
In January 2013, when the incident that underlies this case
occurred, gay marriage was banned in Oregon by constitutional
amendment, and neither United States v. Windsor, 570 U.S. 744
(2013), nor Obergefell v. Hodges, 135 U.S. 2017 (2015), had been
decided. This Court noted the significance of parallel facts in
Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719,
1728 (2018).
2
3
response to the mother’s statement that the Bible
is silent about same-sex relations. Aaron only
quoted a Bible passage that called same-sex
relationships an abomination; he never directed
that epithet toward the persons involved. Even
though acknowledging that the mother had
misquoted Aaron and the Bible, the Oregon
Bureau of Labor and Industries (BOLI) penalized
Sweetcakes by Melissa $135,000 for the trauma
allegedly caused to the same-sex couple.
Penalizing the Kleins for simply quoting the
Bible in a conversation that Rachel’s mother
had initiated and in response to her statement
that the Bible is silent about same- sex
relationships, and after the mother had
distorted Mr. Klein’s statement and the Bible
passage when she conveyed the conversation to
her daughter, is an unconscionable infringement
on free exercise of religion and free speech.
In fairness to BOLI and to the Oregon Court of
Appeals, their failure to protect the Kleins’
constitutional rights in part attributable to this
Court’s downgrade of the free exercise of religion in
Employment Division, Department of Human
Resources v. Smith, 494 U.S. 872 (1990).
Subsequently, the Court has further jeopardized
free exercise by ignoring the refusal of some lower
courts to apply Smith’s hybrid rights test. This
Court should grant the petition for a writ of
certiorari to restore religious liberty to its rightful
place as the first and foremost of our freedoms.
4
ARGUMENT
I. The traditional Judeo-Christian view of
marriage has occupied a favored position
in American law.
The traditional view of marriage as
between one man and one woman has been so
ensconced in American law that American
courts have, until recently, refused to even
recognize alternatives. In Reynolds v. United
States, 98 U.S. 145 (1878), this Court held that
the Free Exercise Clause does not protect the
right to engage in polygamous marriage. In
Davis v. Beason, 133 U.S. 333 (1890), the
Court affirmed its holding in Reynolds, saying
polygamy is not protected by the Free Exercise
Clause because it is a crime “by the laws of all
civilized and Christian countries.” Id. at 341.
The right to engage in other forms of marriage
is not recognized because the Judeo-Christian
view of marriage between one man and one
woman is firmly part of our legal system, and
“Christianity is part of the common law[.]”
Joseph Story, A Discourse Pronounced Upon
the Inauguration of the Author, as Dane
Professor of Law at Harvard University 20
(1829); cf., Updegraph v. Commonwealth, 11
Serg. & Rawle 394, 400 (Pa. 1824); People
v. Ruggles, 8 Johns. 290, 294-95 (N.Y. 1811)
(opinion by Chancellor Kent); Vidal v. Girard’s
Executors, 43 U.S. 127, 2 How. 127, 198
(1844) (opinion by Justice Story).
5
II. Because religious freedom is the first and
foremost right of the Bill of Rights,
infringements upon free exercise of
religion should be accorded “strict
scrutiny.”
Religious liberty is the first of all human
rights because rights themselves are the gift of
God, and because religious liberty involves
matters eternal rather than merely matters
temporal.
The inaugural document of the American
nation,
the Declaration of Independence,
recognizes the “laws of nature and of nature’s
God” and that all people possess “unalienable”
rights that are “endowed by their Creator.” As
Justice Douglas wrote for the Court in Zorach
v. Clauson, 343 U.S. 306, 313 (1952): “We are a
religious people whose institutions presuppose
a
Supreme
Being.”
In
McGowan
v.
Maryland, 366 U.S. 420, 562 (1961) he
wrote in dissent,
The institutions of our society are
founded on the belief that there is an
authority higher than the authority of
the State; that there is a moral law
which the State is powerless to alter;
that the individual possesses rights,
conferred
by
the
Creator,
which
government must respect.
6
Freedom of religion and freedom of expression
were not given to us by the government through
the First Amendment; they are, as the
Declaration of Independence says, “endowed by
[the] Creator.” Government through the
Constitution only “secures” the rights that God
has already granted. The recognition of those
rights predates the Constitution by centuries if
not millennia.
a. The Biblical Foundations of
Religious Liberty
We cannot fully appreciate the importance of
religious freedom (sometimes called liberty of
conscience) to the Framers of the Constitution
without recognizing the role the Bible played in
their thought. On October 4, 1982, Congress
passed Public Law 97-280, declaring 1983 the
“Year of the Bible.” The statute recognizes that
“Biblical teachings inspired concepts of civil
government that are contained in our
Declaration
of
Independence
and
the
Constitution of the United States.”
Professors Donald S. Lutz and Charles S.
Hyneman, after conducting a thorough search of
the writings of leading American political figures
for the period 1760-1805, found that 34% of all
quotations in the Framers’ writings came from
the Bible.3
3 Donald S. Lutz, The Relative influence of European Writers on
Late Eighteenth Century American Political Thought, Amer. Pol. Sci.
Rev. 189 (1984); see also Charles S. Hyneman and Donald S. Lutz,
7
Liberty of conscience is a central principle the
Framers derived from the Scriptures. In 1751 the
Pennsylvania Assembly commissioned a bell to
commemorate the 50th anniversary of the
Charter of Privileges of 1701 and inscribed on
the bell Leviticus 25:10: “Proclaim liberty
throughout all the land unto all the inhabitants
thereof.”
They
well
knew
the
words
immediately preceding this verse: “And ye shall
hallow the fiftieth year,” the year of jubilee. The
bell rang again in July 1776 to celebrate the
Declaration of Independence and is now known
as the Liberty Bell.
The Hebrews observed the Passover to
commemorate Moses leading the people out of
bondage in Egypt into liberty in the Promised
Land. Christians also cite these passages as well
as New Testament verses such as “If the Son,
therefore, shall make you free, ye shall be free
indeed” (John 8:36), and “Stand fast, therefore,
in the liberty with which Christ hath made us
free, and be not entangled again with the yoke
of bondage” (Galatians 5:1).
The Bible values liberty of conscience so
highly that duty to obey God is placed above
duty to obey civil government, and at times
disobedience to tyrants is obedience to God.
American Political Writing during the Founding Era (1983); Eran
Shalev, American Zion: The Old Testament as a Political Text from
the Revolution to the Civil War (2013).
8
Jesus told the Pharisees: “Render to Caesar
the things that are Caesar’s, and to God the
things that are God’s” (Mark 12:17). When the
apostles were prohibited from preaching the
Gospel, they answered, “We must obey God
rather than men” (Acts 5:29). Exodus 1:17
states that the Hebrew midwives “feared God,
and did not as the king of Egypt commanded
them [to kill the male Hebrew infants].” Daniel
faced execution in a den of lions because he
prayed to God in violation of King Darius’s
command (Daniel
6). His companions,
Shadrach, Meshach, and Abednego, faced
execution in a fiery furnace rather than
worship a graven image as commanded by
King Nebuchadnezzar (Daniel 3). The early
Christians and Christians throughout the
centuries into the present have faced
“dungeon, fire, and sword” rather than
compromise their consciences.
b. The Reformation Foundations
of Religious Liberty
Medieval
Catholic
theologians
and
statesmen gave some recognition to liberty of
conscience and religious liberty, sometimes as a
barrier to tyranny and
sometimes
as
protection for the Church as it stood against
the power of the State.4 Martin Luther (1483See generally Oliver O’Donovan & Joan Lockwood O’Donovan,
From Irenaeus to Grotius: A Sourcebook in Christian Political
Thought (1999); James J. Walsh, The Thirteenth, Greatest of
Centuries 338-91 (2nd ed. 1909).
4
9
1546), as he stood before the Diet of Worms and
refused to recant his writings, stood firm on
liberty of conscience:
My conscience is captive to the Word of
God. I cannot and I will not recant
anything, for to go against conscience is
neither right nor safe. Here I stand, I
cannot do otherwise, God help me. Amen.5
Calvinists (who constituted a strong majority
of America’s early settlers and also of the
founding generation6) likewise believed in liberty
of conscience. The Westminster Confession of
Faith, drafted by the Westminster Assembly in
1643 at the call of the Long Parliament, declares
in Chapter XX, Section 2:
God alone is Lord of the conscience, and
hath left it free from the doctrines and
commandments of men, which are, in
anything, contrary to his Word; or beside
it, if matters of faith, or worship. So that,
to believe such doctrines, or to obey such
commands, out of conscience, is to betray
true liberty of conscience: and the
requiring of an implicit faith, and an
absolute and blind obedience, is to destroy
liberty of conscience, and reason also.7
5 Reply to the Diet of Worms (Apr. 18, 1521),
quoted in Roland
Bainton, Here I Stand: A Life of Martin Luther 184-85 (1950).
6 Loraine Boettner, The Reformed Doctrine of Predestination 382
(1972).
7 Westminster Confession of Faith (1643), Chapter XX, Section II;
10
John Milton, the Puritan author of Paradise
Lost and a member of Oliver Cromwell’s
cabinet, strongly opposed Roman Catholic,
Anglican, and Royalist doctrines. Nonetheless,
in 1644 he defended freedom of conscience in
an address to Parliament.8
John Bunyan (1628-1688), the Puritan
author of Pilgrim’s Progress, was convicted in
1660 of unauthorized preaching and failure to
attend the Church of England. He declared
before the court that
a man’s religious views – or lack of them –
are matters between his conscience and his
God, and are not the business of the
Crown, the Parliament, or even, with all
due respect, M’lord, of this court.
However much I may be in disagreement
with
another man’s sincerely held
religious beliefs, neither I nor any other
may disallow his right to hold those
beliefs. No man’s rights in these affairs are
secure if every other man’s rights are not
equally secure.9
Cambridge Puritan theologian William
Perkins (1558-1602) declared that “God hath now
reprinted in Trinity Hymnal 860 (1999).
8 Reprinted in The Portable Library of Liberty;
files.libertyfund.org/pll/qotes/51.html
9 Transcript of Trial of John Bunyan before Judge Wingate (Oct. 3,
1660), reprinted in John Bunyan on Individual Soul Liberty,
www.pastorjack.org/?tag=individual-soul-liberty
11
in the New Testament given a liberty of
conscience.”10 He added that God sometimes
requires us to disobey, because sometimes “men
are bound in conscience not to obey.”11
Bishop Joseph Hall (1574-1656) insisted that
“Princes and churches may make laws for the
outward man, but they can no more bind the
heart than they can make it.”12 Bishop George
Downame (1560-1634) stated: “The conscience of
a Christian is exempted from human power, and
cannot be bound but where God doth bind it.”13
John Locke (1632-1704), a major influence
on the American founding generation,14 wrote
that “religion is the highest obligation that lies
upon mankind,” that “there is nothing in the
world that is of any consideration in
comparison with eternity,” that “the care of
each man’s salvation belongs only to himself,”
and that no life lived “against the dictates of
his conscience will ever bring him to the
mansions of the blessed.”15 The son of a
Puritan lawyer, Locke was very much
10 I William Perkins, Works 529 (1612-1618), quoted in L. John Van
Til, Liberty of Conscience: The History of a Puritan Idea 4, 21 (1992).
11 I Perkins, Works 530; quoted in Van Til, Liberty of Conscience 23.
12 VI Bishop Joseph Hall, Works 649 (1863), quoted in Van Til,
Liberty 41.
13 Bishop George Downame, The Christian’s Freedom 102, 104ff
(1635), quoted in Van Til 41.
14 See Hyneman and Lutz, supra n. 2. Lutz and Hyneman concluded
that the founding generation quoted Locke more than any other
source except the Bible, Montesquieu, and Blackstone.
15 John Locke, A Letter Concerning Toleration 34, 46 (1688-89)
(Patrick Romanell, ed. 1955).
12
influenced by the Puritan tradition.
c. The Colonial Foundations of
Religious Liberty
While much of the groundwork for liberty of
conscience was laid by the Puritans in
England, Van Til asserts that “[l]iberty of
conscience triumphed in America, while it failed
in England.”16 As evidence for that proposition,
colonial charters and constitutions at the time
of the American War for Independence strongly
recognized and protected liberty of conscience,
although 9 c o l o n i e s e x p r e s s l y so within
the bounds of Christian orthodoxy. New York
and Virginia are provided below :
New York:
And whereas we are required, by the
benevolent principles of rational liberty, not
only to expel civil tyranny, but also to guard
against that spiritual oppression and intolerance
wherewith the bigotry and ambition of weak and
wicked priests and princes have scourged
mankind, this convention doth further, in the
name and by the authority of the good people
of this State, ordain, determine, and declare,
that the free exercise and enjoyment of religious
profession and worship, without discrimination
or preference, shall forever hereafter be allowed,
16 Van Til 128.
13
within this State, to all mankind. . . .17
Virginia:
That religion, or the duty which we owe to our
Creator, and the manner of discharging it, can be
directed only by reason and conviction, not by
force or violence; and therefore all men are
equally entitled to the free exercise of religion,
according to the dictates of conscience, and that
it is the mutual duty of all to practice Christian
forebearance, love, and charity towards each
other.18
In light of this Biblical, Reformation, and
colonial background, it is understandable that
James
Madison submitted the religious
liberty article of the Bill of Rights with this
original wording:
The Civil Rights of none shall be
abridged on account of religious belief or
worship, nor shall any national religion
be established, nor shall the full and
equal rights of conscience be in any
manner, nor on any pretext infringed. 19
Because
there
was no
verbatim
New York Constitution of 1777, Article XXXVIII,
avalon.law.yale.edu/18th_century/ny01.asp
18 Virginia Constitution of 1776 and Declaration of Rights, Sec. 16,
https://law.gmu.edu/assets/files/academic/founders/VAConstitution
19 Lib. of Cong., Religion and the Founding of the American Republic,
https://www.loc.gov/exhibits/religion/rel06.html
17
14
transcript of the first session of
Congress, it is unclear exactly how
or why the phrase “equal rights of
conscience” was changed to “free
exercise.” It seems likely that the
Framers used the term “exercise”
because they wanted to be sure that
religious liberty included not only
the right to believe but also the
right to act in accordance with that
belief, although such action is
implied in the term liberty of
conscience.
Religious freedom is meaningless without
the right to act on one’s beliefs. So long as no
machine can read the thoughts of the heart,
liberty of conscience exists everywhere in the
world. Even in totalitarian nations like North
Korea and Iran, a person is free to believe
whatever one chooses so long as he or she does
not say or do anything about it. Religious
liberty is meaningful in a legal and political
context only when it extends to words and
actions.
The Framers clearly regarded religious
liberty as the first and foremost of our
freedoms. Religious liberty has eternal, not
merely temporal consequences. As J. Howard
Pew has noted: “From Christian freedom
comes all other freedoms.” 20
20 J. Howard Pew, quoted in Van Til 3.
15
III.
Employment Division v. Smith does
not do justice to the Framers’ vision of
religious liberty.
The Framers might well view with skepticism
the preoccupation of today’s courts with tiers and
tests. But they would be utterly incredulous
that the Court in Employment Division v.
Smith would downgrade the Free Exercise
Clause to a “lower tier” right that, unlike other
rights, can be infringed with merely a rational
basis.
Amicus
questions whether even strict
scrutiny is sufficient to protect this first and
foremost of our liberties. But unless and until
the Court is willing to reconsider the whole
issue of tiers and tests, at the very least Free
Exercise should be given the strict scrutiny
protection it rightfully deserves.
Professor Leo Pfeffer called the Free Exercise
Clause the “favored child” of the First
Amendment. Church, State and Freedom 74
(1953). Chief Justice Burger seemed to share
that view. He stated: “One can only hope that
at some future date the Court will come to a
more enlightened and tolerant view of the First
Amendment’s guarantee of free exercise of
religion....” Meek v. Pittinger, 421 U.S. 349, 387
(Burger, C.J., concurring in judgment in part
and dissenting in part).
16
Professor Laurence Tribe wrote that the
First Amendment religion clauses embody two
basic principles: separation (the Establishment
Clause) and voluntarism (the Free Exercise
Clause). “Of the two principles,” he said,
“voluntarism may be the more fundamental,”
and therefore, “the free exercise principle
should be dominant in any conflict with the
anti-establishment principle.”21 Voluntarism is
central to the case at hand, for the Oregon
Court of Appeals ruling has the effect of
compelling the Kleins to act in contravention
of their most basic beliefs, thus violating the
right of free exercise at its very core.
This Court gave high protection to religious
liberty in early free exercise cases. In Cantwell
v. Connecticut, the Court held that
the
[first]
amendment
raises
two
concepts—freedom to believe and freedom
to act. The first is absolute, but, in the
nature of things, the second cannot be.
Certain conduct remains subject to
regulation for the protection of society. The
freedom to act must have appropriate
definition to preserve the enforcement of
that protection. In every case the power to
regulate must be so exercised as not, in
attaining a permissible end, unduly to
infringe the protected freedom.
21 American Constitutional Law 833 (1978). Cf. 2d ed. at 1160.
17
310 U.S. 296, 303-04 (1940). Cantwell seems to
say that infringements on free exercise are
subject to higher scrutiny than a mere
reasonable relationship to a legitimate state
purpose.
The high protection test was further
articulated in Sherbert v. Verner, 374 U.S. 398
(1963), and developed into a three-part test in
Wisconsin v. Yoder, 406 U.S. 205 (1972).
But in Employment Division v. Smith, 494
U.S. 872 (1990), the Court appeared to limit
Yoder to cases in which either (1) the law was
directly aimed at religion, or (2) the free exercise
claim was asserted as a hybrid right alongside
another right such as privacy or free speech.
Unlike Yoder, which was an almostunanimous decision,22 Smith was decided by a
sharply divided Court. Justice Scalia wrote the
majority opinion, joined by Chief Justice
Rehnquist and Justices White, Stevens, and
Kennedy. He said that freedom of belief is
absolute, as is freedom to engage in certain
traditionally religious activities like attending
worship services, but lower protection applies
when religious persons engage in activities
that nonreligious persons might engage in as
well.
Smith at 877-79. Justice Blackmun
dissented, joined by Justices Brennan and
Only Justice Douglas dissented, and only in part. He did not
dispute the Court's basic reasoning but dissented because he noted
a potential conflict between the rights of the parents and those of
the child that had not been fully articulated in the case.
22
18
Marshall, arguing that the strict scrutiny test
must be preserved in free exercise cases.
Justice O’Connor wrote a concurrence that
sounded much more like a dissent. She
excoriated the majority for departing from the
strict scrutiny test but concurred because she
believed the state had a compelling interest in
regulating controlled substances that could not
be achieved by less restrictive means.
Smith received harsh criticism from the
beginning.
A
massive
coalition
of
organizations, ranging from liberal groups like
the American Civil Liberties Union and People
for the American Way to more conservative
groups like the National Association of
Evangelicals, the United States Catholic
Conference, and
the
Southern
Baptist
Convention, joined together to denounce the
decision and call for a return to the Yoder
standard. Congress responded by passing the
Religious Freedom Restoration Act of 1993
(“RFRA”), 42 U.S.C. § 2000bb-3, in the House
by a voice vote and in the Senate 97-3,
President Clinton added his signature but this
Court struck down the law as applied to the
states by a vote of 6 to 3 in Boerne v Flores,
521 U.S. 507 (1997). The Court unanimously
upheld RFRA as applied to the federal
government in Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418
(2006).
19
Twenty-one states have adopted versions of
RFRA that require application of the compellinginterest/less-restrictive-means
test.
Ten
additional states
have
incorporated
the
principles of the Act by state court decision.23
Many legal scholars have criticized Smith.
Professor Michael McConnell, who later served
on the Tenth Circuit, cogently observed that
the Court effectively decided Smith on its own
initiative, as none of the parties had asked the
Court to abandon the Yoder test.24 John Witte,
Jr., Professor of Law at Emory University,
demonstrated that Smith is at odds with the
basic principles that underlie the religion
clauses, especially liberty of conscience, free
exercise, pluralism, and separationism.25
However, Amicus’ analysis of Smith must
begin with a recognition that Smith did get one
thing right: Religious liberty is a jurisdictional
See State Religious Freedom Restoration Acts, National
Conference
of
State
Legislatures
(May
4,
2017),
http://www.ncsl.org/research/civiland-criminal-justice/staterfra-statutes.aspx
24 Michael W. McConnell, Free Exercise Revisionism and the Smith
Decision, 57 U. Chi. L. Rev. 1109 (1990). Professor McConnell also
noted that “over a hundred constitutional scholars” had petitioned
the Court for a rehearing which was denied. Id. at 1111. See also
Michael W. McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990).
25 John Witte, Jr., The Essential Rights and Liberties of Religion in the
American Constitutional Experiment, 71 Notre Dame L. Rev. 371,
376-78, 388, 442-43 (1999).
23
20
issue in that government has no jurisdiction over
religion. As the Court said at 877-78,
The free exercise of religion means, first and
foremost, the right to believe and profess
whatever religious doctrine one desires.
Thus, the First Amendment obviously
excludes all "governmental regulation of
religious beliefs as such." Sherbert v. Verner,
supra, 374 U.S. at 402. The government may
not compel affirmation of religious belief, see
Torcaso v. Watkins, 367 U.S. 488 (1961),
punish the expression of religious doctrines
it believes to be false, United States v.
Ballard, 322 U.S. 78, 86-88 (1944), impose
special disabilities on the basis of religious
views or religious status, or lend its power to
one or the other side in controversies over
religious authority or dogma.
But the "exercise of religion" often
involves not only belief and profession but
the performance of (or abstention from)
physical acts: assembling with others for a
worship service, participating in sacramental
use of bread and wine, proselytizing,
abstaining from certain foods or certain
modes of transportation. It would be true, we
think (though no case of ours has involved
the point), that a state would be "prohibiting
the free exercise [of religion]" if it sought to
ban such acts or abstentions only when they
are engaged in for religious reasons, or only
because of the religious belief that they
21
display.
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.
(Cleaned up). This reasoning in Smith, the
"jurisdictional" portion, is sound and should be
preserved. The Framers understood church and
state to be separate kingdoms or jurisdictions,
neither of which could dictate to the other. This
applied not only to religious beliefs but also to
actions associated with religious belief, such as
worship, partaking of the sacraments, or bowing
before idols.
But another portion of Smith, which we will
call the "general applicability" portion, is
dangerous:
Respondents in the present case, however,
seek to carry the meaning of "prohibiting the
free exercise [of religion]" one large step
further. They contend that their religious
motivation for using peyote places them
beyond the reach of a criminal law that is not
specifically directed at their religious
practice,
and
that
is
concededly
constitutional as applied to those who use
the drug for other reasons. They assert, in
other words, that "prohibiting the free
exercise [of religion]" includes requiring any
individual to observe a generally applicable
law that requires (or forbids) the
performance of an act that his religious belief
forbids (or requires). As a textual matter, we
22
do not think the words must be given that
meaning. It is no more necessary to regard
the collection of a general tax, for example,
as "prohibiting the free exercise [of religion]"
by those citizens who believe support of
organized government to be sinful than it is
to regard the same tax as "abridging the
freedom . . . of the press" of those publishing
companies that must pay the tax as a
condition of staying in business. It is a
permissible reading of the text, in the one
case as in the other, to say that, if
prohibiting the exercise of religion (or
burdening the activity of printing) is not the
object of the tax, but merely the incidental
effect of a generally applicable and otherwise
valid provision, the First Amendment has
not been offended.
(Cleaned up). The harsh criticism of Smith
has been directed toward the "general
applicability" portion of the decision, not the
decision as a whole. Amicus agrees with that
criticism. The "general applicability" portion of
Smith has taken the foremost of all rights,
religious liberty, and relegated it to bottom, the
lowest of all rights.
Further, a court-created right such as
same-sex marriage should not take precedence
over the sacred rights of religious conscience
enshrined in the First Amendment. As this
Court stated in Bowers v. Hardwick: “The
Court is most vulnerable and comes nearest to
illegitimacy when it deals with judge-made
23
constitutional law having little or no cognizable
roots in the language or design of the
Constitution.” 478 U.S. 186, 194 (1986)
(overruled on other grounds by Lawrence v.
Texas, 539 U.S. 558 (2003)). Neomi Rao,
Associate Professor of Law at Antonin Scalia
Law
School,
questions
whether
the
importation of expansive and subjective
notions of “dignity” into the Constitution
comports with the Founders’ design. 26
In Fulton v. Philadelphia, ___ U.S. ___
(2021), this Court addressed a Philadelphia
requirement foster care agencies may not
discriminate against same-sex couples. The
Court did not expressly overrule Smith
because the Court could uphold Fulton's claim
without overruling Smith. The Court held
that, because the Philadelphia ordinance
allowed other exemptions for the requirement
that foster care agencies must not discriminate
against same-sex couples, it must use strict
scrutiny before refusing Fulton's religious
objection to the requirement. But five of the
Justices (Thomas, Alito, Gorsuch, Kavanaugh,
and Barrett, JJ) made it clear in their
concurring opinions that they believe it is time
to overrule Smith. Justice Gorsuch observed
26 Neomi Rao, The Trouble with Dignity and Rights of Recognition,
99 Va. L. Rev. Online 29 (2013); Three Concepts of Dignity in
Constitutional Law, 86 Notre Dame L. Rev. 183 (2011); On the Use
and Abuse of Dignity in Constitutional Law, 14 Colum. J. Eur. L. 201
(2008).
24
in his Fulton concurrence, "No fewer than ten
Justices – including six sitting Justices – have
questioned
[Smith's]
fidelity
to
the
Constitution." Fulton at ___. Although the
decision did not expressly overrule Smith, in
Mark Silk's words it put the " Smith decision
on life support."27
In summary, the "general applicability"
portion of Employment Division v. Smith:
•
Was adopted sua sponte without
request, argument, or briefing from
the parties.
•
Was adopted by a bare majority over
a strong dissenting opinion by three
Justices and a concurring opinion
that rejected the Smith rationale and
concurred only in the result.
•
Rests upon a strained attempt to
reconcile its reasoning with that of
Yoder and other decisions.
•
Was sharply criticized by a wide
spectrum of the legal and religious
communities of the nation.
•
Was repudiated by an overwhelming
vote of Congress in adopting the
27 Mark Silk, "Supreme Court Puts Scalia's Smith Decision on Life
Support," June 21, 2021,
https://religionnews.com/2021/06/21/scotus-puts-scalias-smithdecision-on-life-support/
25
Religious Freedom Restoration Act
which was signed into law by
President
Clinton
but
partially
invalidated by this Court in Flores.
•
Was repudiated by (thus far) thirtyone states through the adoption of
mini-RFRA
statutes,
state
constitutional amendments, or state
court decisions.
•
Has been ignored, strained, or limited
by many circuit courts and other courts.
•
Has proven unfair and unworkable in
practice.
•
Is manifestly contrary to the Framers’
elevated view of religious liberty by
reducing this most- cherished right to
mere lower-tier status.
Because of all of these reasons, it is clearly
time for this Court to reconsider the "general
applicability" portion of Employment Division
v. Smith.
IV.
This case clearly qualifies as a
hybrid- rights exception to Smith.
If the Court is not going to reconsider
Smith at this time, then the Court should
put some “teeth” into Smith’s hybrid-rights
doctrine and apply that doctrine to this case.
Smith’s hybrid-rights doctrine asserts that
26
strict scrutiny must be applied to a free
exercise of religion claim when that claim is
raised in tandem with a claimed violation of
another constitutional right.
The Kleins assert that their artistic
expression in preparing wedding cakes is
protected free speech. And what could be more
protected First Amendment expression than
Mr. Klein’s quotation from the Bible in
response to the brash assertion that the Bible
is silent about same-sex relationships?
Even if cake-decorating is only middle-tier
speech, the Smith hybrid-rights doctrine never
said the hybrid right must be an upper-tier
fundamental right. If it did, the doctrine would
make no sense, because such rights can stand
on their own independent of a free exercise
claim. As Justice Souter stated concerning the
hybrid-rights doctrine:
[T]he distinction Smith draws strikes me
as ultimately untenable. If a hybrid
claim is simply one in which another
constitutional right is implicated, then
the hybrid exception would probably be
so vast as to swallow the Smith rule,
and, indeed, the hybrid exception would
cover the situation exemplified by Smith,
since free speech and associational rights
are certainly implicated in the peyote
ritual. But if a hybrid claim is one in
which a litigant would actually obtain an
27
exemption from a formally neutral,
generally applicable law under another
constitutional provision, then there
would have been no reason for the Court
in what Smith calls the hybrid cases to
have mentioned the Free Exercise
Clause at all.
Church of the Lukumi Babalu Aye, Inc., v.
City of Hialeah, 508 U.S. 520, 566-67
(1993) (Souter, J., concurring in part and
concurring in judgment).
Lower federal courts routinely ignore Smith’s
“hybrid rights” exception.28 According to
Stephen Aden and Lee Strang:
One would assume, a priori, that the
Supreme Court’s pronouncement in
Smith – that when a plaintiff pleads or
brings both a free exercise claim with
another
constitutional
claim
the
combination claim is still viable postSmith – is the law. In fact, litigants
assumed just that, but the appellate
courts have been thoroughly unreceptive
to hybrid right claims.29
After discussing numerous federal circuit
court cases in which hybrid rights claims have
28 Stephen H. Aden and Lee J. Strang, When a ‘Rule’ Doesn’t Rule: the
Failure of the Oregon Employment Division v. Smith “Hybrid Rights
Exception,” 108 Penn St. L. Rev. 573 (2002).
29 Id. at 587.
28
been denied, Aden and Strang explain why the
lower courts have not followed this Court’s
guidance:
1.
The hybrid exception was created in
what many view as a post-hoc attempt
to distinguish controlling precedent;
2.
The compelling interest test in the
realm of free exercise jurisprudence
was never “compelling,” and hybrid
claims simply suffer a continuation of
the reluctance to excuse conduct
because of religious belief;
3.
Difficulty in determining the proper
burdens and procedures to assert a
hybrid claim, namely the analytical
difficulty in conceptualizing how
hybrid claims fit into free exercise
jurisprudence; and
4.
Growing hostility to exemptions from
state anti-discrimination laws which
have ever increasing numbers of
protected classes.30
Three of this Court's 2022 decisions
concerning religion clearly qualify as hybrid
cases: Shurtleff (free exercise and free speech),
Carson (free exercise and parental rights), and
Kennedy (free exercise and free speech). In the
fourth case, Ramirez, the Texas prison
30 Id. at 602.
29
requirement of "absolute silence" during an
execution could conceivably be "neutral" and of
"general
applicability,"
but
the
Court
nevertheless applied strict scrutiny based on
RUILPA and based on "a historical tradition of
clerical prayer at the time of a prisoner's
execution that stretches well back before the
founding and continues today."
While Amicus strongly disagrees with any
assertion that free exercise of religion is
anything less than a fundamental right, we
suggest that when a free exercise claim is
asserted in tandem with a non-fundamental
right, the combined weight of the two rights
requires that they be treated together as a
fundamental right entitled to strict scrutiny.
CONCLUSION
This case presents the Court with a special
opportunity to correct an egregious Free Exercise
and Free Speech violation and also to revisit
Smith and clarify the true meaning of religious
liberty. We urge the Court to grant the petition
for a writ of certiorari.
Respectfully submitted,
JOHN A. EIDSMOE
Counsel of Record
TALMADGE BUTTS
CONSTITUTIONAL ATTORNEYS
One Dexter Avenue
30
Montgomery, AL 36104
(334) 324-1812
eidsmoeja@juno.com
talmadge@morallaw.org
Counsel for Amicus Curiae
October 6, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.