Amicus Curiae Brief — Calvary Chapel San Jose, et al., Petitioners v. California, et al.

No. 25-703

IN THE

Supreme Court of the United States

_____________

CALVARY CHAPEL SAN JOSE, et al.,

Petitioners,

v.

THE PEOPLE OF THE STATE OF CALIFORNIA,

et al.,

Respondents.

______________

ON PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL, SIXTH APPELLATE

DISTRICT

BRIEF OF AMICUS CURIAE NATIONAL

RELIGIOUS BROADCASTERS IN SUPPORT OF

PETITIONERS

January 14, 2026

MICHAEL P. FARRIS

Counsel of Record

SARAH E. SIU

NATIONAL RELIGIOUS

BROADCASTERS

800 Maryland Avenue NE

Washington, D.C. 20002

571-359-6000

mfarris@nrb.org

ssiu@nrb.org

Counsel for Amicus Curiae

National Religious Broadcasters

i

TABLE OF CONTENTS

Page

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

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

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................. 3

I. EMPLOYMENT DIVISION, DEPARTMENT

OF HUMAN RESOURCES OF OREGON V.

SMITH’S LEGAL SHORTCOMINGS AND

RESULTING PRACTICAL HARMS

REQUIRE THAT SMITH BE OVERTURNED

WITHOUT FURTHER DELAY. ...................... 3

A. Smith’s legal shortcomings ......................... 3

1. Smith is at odds with the Free Exercise

Clause’s text. ........................................... 4

2. Smith is at odds with the Free Exercise

Clause’s historical context. .................... 6

3. Smith distorts and occasionally entirely

misrepresents the precedents on which

it purports to rely. ................................ 11

B. Smith’s practical harms ............................ 15

1. Smith’s foreclosing of as-applied

challenges demoted free exercise to a

second-class right. ................................ 15

ii

2. Smith’s divorce from history and text

invites unfair burden-shifting like that

experienced by Petitioners below. ....... 17

II. THE SUPREME COURT SHOULD ADOPT A

FREE EXERCISE ANALYSIS THAT

AFFORDS FREE EXERCISE THE

PROTECTION A FUNDAMENTAL RIGHT

DESERVES AND THE FIRST AMENDMENT

PROMISES. ..................................................... 20

A. To ensure that the fundamental right to

free exercise of religion is not infringed,

this Court should honor religious

convictions in the absence of a historically

grounded exception. ................................... 21

B. At minimum, laws which infringe upon the

free exercise of religion should be required

to survive strict scrutiny. .......................... 24

CONCLUSION ........................................................... 25

iii

TABLE OF AUTHORITIES

Page

Cases

Bowen v. Roy, 476 U.S. 693 (1986)............................ 18

Cantwell v. Connecticut, 310 U.S. 296 (1940) ........ 4, 6

Capitol Hill Baptist Church v. Bowser, 496 F. Supp.

3d 284 (D.D.C. 2020)............................................... 19

City of Boerne v. Flores, 521 U.S. 507 ......................... 9

Commonwealth v. Cronin, 2 Va. Cir. 488 (1855) ....... 7

Compare Tandon v. Newsom, 992 F.3d 916 (9th Cir.

2021)......................................................................... 19

Cornerstone Bible Church v. City of Hastings, 948

F.2d 464 (8th Cir. 1991) ......................................... 17

D.C. v. Heller, 554 U.S. 570 (2008) ........................... 24

Dombrowski v. Pfister, 380 U.S. 479 1965) .............. 16

Edwards v. Aguillard, 482 U.S. 578 (1987) ............. 14

Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872 (1990)

...... 2, 3, 4, 6, 9, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22

Florida v. Jardines, 569 U.S. 1 (2013)...................... 24

Fulton v. City of Philadelphia, Pennsylvania, 593

U.S. 522 (2021) ............................................15, 19, 20

Gateway City Church v. Newsom, 141 S. Ct. 1460

(2021) ....................................................................... 20

iv

Gish v. Newsom, 141 S. Ct. 1290 (2021) ................... 20

Harvest Rock Church v. Newsom, 141 S. Ct. 889

(2020) ....................................................................... 20

Hobbie v. Unemployment Appeals Comm’n of Fl., 480

U.S. 136 (1987) .................................................. 14, 18

Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349

(1908) ......................................................................... 6

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022)

.................................................................................. 19

Miller v. Civil City of South Bend, 904 F.2d 1081

(7th Cir. 1990) ......................................................... 17

People v. Calvary Chapel San Jose, 2025 Cal. App.

Unpub. LEXIS 2244 at *52 (Apr. 15, 2025) (Pet.

App. 41a).................................................................. 20

People v. Phillips, N.Y. Ct. Gen. Sess. June 14, 1813.

.................................................................................... 7

Reynolds v. United States, 98 U.S. 145 (1878) ........... 6

Roman Catholic Diocese v. Cuomo, 592 U.S. 14

(2020) ....................................................................... 20

Sherbert v. Verner, 374 U.S. 398 (1963) ................... 14

South Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) .............................................. 20

Tandon v. Newsom, 593 U.S. 61 (2021) .................... 19

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ... 14

Thomas v. Review Bd., Indiana Employment

Security Div., 450 U.S. 707 (1981) .................. 14, 18

v

Time, Inc. v. Hill, 385 U.S. 374 (1967) ..................... 16

U.S. v. Grace, 461 U.S. 171 (1983) ............................ 16

U.S. v. Lee, 455 U.S. 252 ............................................ 22

Vlaming v. West Point School Board, 895 S.E.2d 705

(Va. 2023).......................................................3, 22, 23

Wisconsin v. Yoder, 406 U.S. 205

(1972)………………………………...11, 13, 14, 16, 25

Statutes

Va. Code § 57-1......................................................... 9

Other Authorities

Stephanie H. Barclay, The Historical Origins of

Judicial Religious Exemptions, 96 Notre Dame L.

Rev. 55 (2020) .......................................................... 8

Michael P. Farris & Jordan W. Lorence, Employment

Division v. Smith and the Need for the Religious

Freedom Restoration Act, 6 Regent U. L. Rev. 65

(1995)................................................................ 15, 18

Michael P. Farris, Facing Facts: Only a

Constitutional Amendment Can Guarantee

Religious Freedom for All, 21 Cardozo L. Rev. 689

(1999)...................................................................... 13

Samuel Johnson, Dictionary (1773),

https://johnsonsdictionaryonline.com/views/se .... 5

vi

Letter from James Madison to Thomas Jefferson

(Oct. 17, 1788),

https://founders.archives.gov/documents/Jefferson

/01-14-02-0018. ................................................ 10, 21

Letter from Thomas Jefferson to James Madison

(Dec. 20, 1787),

https://founders.archives.gov/documents/Jefferson

/01-12-02-0454. ...................................................... 10

Branton J. Nestor, The Original Meaning and

Significance of Early State Provisos to the Free

Exercise of Religion, 42 Harv. J.L. & Pub. Pol’y

971 (2019) ....................................................5, 21, 24

James Madison, Madison’s Amendments to the

Declaration of Rights, in 1 The Papers of James

Madison (William T. Hutchinson & William M.E.

Rachal eds., 1962) ................................................... 9

George Mason, Committee Draft of the Virginia

Declaration of Rights, in 1 The Papers of George

Mason (Robert A. Rutland ed., 1970). ................... 9

Michael W. McConnell, Free Exercise Revisionism

and the Smith Decision, 57 U. Chi. L. Rev. 1109

(1990).............................................................. 7, 8, 22

Michael W. McConnell, Freedom from Persecution or

Protection of the Rights of Conscience?: A Critique

of Justice Scalia's Historical Arguments in City of

Boerne v. Flores, 39 Wm. & Mary L. Rev. 819

(1998)...................................................................... 24

vii

Michael W. McConnell, Should Congress Pass

Legislation Restoring the Broader Interpretation

of Free Exercise of Religion?, 15 Harv. J.L. & Pub.

Pol’y 181, 185 (1992) ........................................... 5, 6

Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

Harv. L. Rev. 1409 (1990) ................................ 7, 24

John A. Ragosta, Wellspring of Liberty: How

Virginia's Religious Dissenters Helped Win the

American Revolution and Secured Religious

Liberty (2010) ........................................................ 24

Resolution of July 18, 1775, reprinted in 2 Journals

of the Continental Congress, 1774-1789 (W. Ford

ed. 1905 & photo. reprint 1968). ............................ 7

William Sampson, The Catholic Question in America

(photo. Reprint 1974) (1813) .................................. 7

Constitutional Provisions

U.S. Const. amend. I ................................................ 4, 5

U.S. Const. amend. IV .............................................. 5

1

INTEREST OF AMICUS CURIAE

National Religious Broadcasters (NRB) is a nonpartisan association of Christian broadcasters united

by their shared purpose of proclaiming Christian

teaching and promoting biblical truths. NRB’s 1,035

members reach a weekly audience of approximately

141 million American listeners, viewers, and readers

through radio, television, the Internet, and other

media.1

Since its founding in 1944, NRB has worked to

support its members’ efforts to spread the Gospel and

freely and fully exercise their religion. NRB also

works to ensure that members may broadcast their

messages of hope through First Amendment

guarantees. NRB believes that religious liberty and

freedom of speech together form the cornerstone of a

free society.

If government officials and courts are allowed to

continue to weaponize so-called neutral, generally

applicable laws to shut down religious exercise in

churches, a dangerous precedent is set that could

empower regulators to stop, under the guise of

neutral, generally applicable laws, all manner of

religious practice, including religious broadcasting

and media. The free exercise of religion is too precious

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae certifies that no counsel for any party authored this brief

in whole or in part. No person or entity other than NRB

furnished any monetary contribution for the preparation of this

brief. Counsel further certifies that, pursuant to Supreme Court

Rule 37.2, counsel of record were timely notified on January 5,

2026, of the intent to file this brief under this Rule.

2

a fundamental right to be subjected to the goodwill

and good faith of government officials and courts.

SUMMARY OF ARGUMENT

Employment Division, Department of Human

Resources of Oregon v. Smith was a mistake.

Continuing to cling to it despite its legal shortcomings

and practical harms compounds the mistake

exponentially. First, exempting “neutral, generally

applicable” statutes from the Free Exercise Clause’s

protections is at odds with Smith’s own

acknowledgement that free exercise must include

actual exercise, not only belief, the plain meaning of

the word “prohibit,” and the powerful and uncaveated introduction, “no law.” The most natural

reading of the Free Exercise Clause recognizes

citizens’ rights to practice religion to the maximum

extent possible, which is incompatible with Smith’s

overbroad carveout. Smith also ignores and cannot be

squared with the Framers’ original understanding,

practice, and drafting of the Free Exercise Clause and

related contemporaneous clauses, which highlighted

their worry that the First Amendment would not

protect free exercise broadly enough. Finally, Smith

distorts and sometimes entirely misrepresents the

precedents on which it purports to rely, leaving it with

no leg to stand on.

These legal deficiencies have led to practical

problems. Smith’s test closed the door to as-applied

free exercise challenges, effectively rendering free

exercise a second-class right, alone among the First

Amendment’s fundamental rights. Additionally,

Smith’s rhetoric provided lower courts with tools to

circumvent even the limited protection of Smith

3

through unfair burden-shifting,

underwent below.

as

Petitioners

This Court should take this opportunity to put

Smith to rest and, in its place, adopt a test that

affords free exercise the protection due a fundamental

right. To replace Smith, we offer two suggestions.

First, as modeled by the Virginia Supreme Court in

Vlaming v. West Point School Board, this Court

should honor religious convictions in the absence of a

historically grounded exception, an approach which is

consistent with this Court’s treatment of other

fundamental rights. In the alternative, this Court

should return to true strict scrutiny and require laws

that infringe upon free exercise to further a truly

compelling interest using the least restrictive means

possible.

ARGUMENT

I.

EMPLOYMENT DIVISION, DEPARTMENT

OF HUMAN RESOURCES OF OREGON V.

SMITH’S LEGAL SHORTCOMINGS AND

RESULTING

PRACTICAL

HARMS

REQUIRE THAT SMITH BE OVERTURNED

WITHOUT FURTHER DELAY.

In Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872 (1990), the

Supreme Court adopted a rule of constitutional law

that was never briefed or argued by the litigants. Now,

with the benefit of three and a half decades of

hindsight, the majority's errors and omissions are all

too plain.

A. Smith’s legal shortcomings

4

1. Smith is at odds with the Free Exercise

Clause’s text.

The

First

Amendment

guarantees

that

Congress—and

government

generally,

postincorporation—“shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof . . . .” U.S. Const. amend. I; Cantwell

v. Connecticut, 310 U.S. 296 (1940) (incorporating the

Free Exercise Clause). The key phrases for free

exercise purposes are “no law,” “prohibiting,” and

“free exercise of religion.”

Smith begins on a high note, acknowledging that

the Free Exercise Clause protects “the free exercise”

of religion, which includes not only “the right to

believe and profess whatever religious doctrine one

desires” but also “the performance of (or abstention

from) physical acts.” Smith, 494 U.S. at 877.

Unfortunately, the strong start ends there. Smith

almost immediately proceeds to its conclusion that

neutral, generally applicable laws do not violate the

First Amendment, without addressing how that

arises from or even squares with the First

Amendment’s text. The short answer: it doesn’t.

The Smith Court appears to take the position that

for a law to “prohibit” something, it must target or

single out that thing. Smith, 494 U.S. at 878.

Therefore, neutral, generally applicable laws can

never “prohibit” the exercise of religion, since they do

not apply only to religious exercise and are not

specifically intended to prevent religious exercise. Id.

But the usual meaning of “prohibit” includes more

than merely to “target” or “single out.” The 1773

5

edition of Samuel Johnson’s Dictionary defines

“prohibit” “to forbid; to interdict by authority. . . . To

hinder; to debar; to prevent; to preclude.”

https://johnsonsdictionaryonline.com/views/se

arch.php?term=prohibit (emphasis added). A zoning

ordinance that requires that a particular area be

restricted to “residential uses” prohibits toy stores,

even though the ordinance did not target toy stores,

much less mention them. Michael W. McConnell,

Should Congress Pass Legislation Restoring the

Broader Interpretation of Free Exercise of Religion?,

15 Harv. J.L. & Pub. Pol’y 181, 185 (1992).

Taking “prohibit” in its full sense, rather than

artificially limiting it as Smith did, is also consistent

with the absolute language in the rest of the clause.

“No law” may prohibit free exercise—not

discriminatory laws, and not neutral, generally

applicable laws either. And unlike most state free

exercise provisions, the First Amendment does not

contain any limiting language, even the most common

“peace and safety” language. Branton J. Nestor, The

Original Meaning and Significance of Early State

Provisos to the Free Exercise of Religion, 42 Harv. J.L.

& Pub. Pol’y 971, 972 (2019).

The full-throated language in the First

Amendment contrasts with the caveated language of

the Fourth Amendment. Unlike the Fourth

Amendment, the First Amendment does not

distinguish between reasonable and “unreasonable”

government actions. U.S. Const. amend. I, IV. The

First Amendment applies to all laws.

Thus, the most natural reading of the Free

Exercise Clause is that it recognizes the right of “all

6

citizens . . . to practice religion to the maximum extent

possible.” McConnell, Should Congress Pass

Legislation, supra, at 181. While even the broadest

right must have some limiting principle, Hudson Cnty.

Water Co. v. McCarter, 209 U.S. 349, 355 (1908), the

omission of a limiting principle and the included

language’s strength point to a narrow limiting

principle. Reading the Free Exercise Clause to apply

only in the absence of a neutral, generally applicable

law strains the plain language of the clause and

reduces key terms to useless decoration.

2. Smith is at odds with the Free Exercise

Clause’s historical context.

Compounding its cursory treatment of the text,

the Smith Court made no attempt to analyze the

Framers’ original understanding or the historical

context surrounding the Free Exercise Clause.2 Even

prior to Smith, the Supreme Court’s free exercise

jurisprudence suffered from a lack of historical

analysis, which set free exercise in a vulnerable

position compared to other fundamental rights. But it

was not until Smith that the Court’s ahistorical

approach led to an entirely ahistorical result.

A quick look at the Framers’ writings and

practices shows that contrary to Smith, providing free

exercise exemptions from generally applicable laws

was the norm. While exemptions were not often

2 The Smith majority opinion’s oldest citation is to Reynolds

v. United States, 98 U.S. 145 (1878), an odd citation because that

case relied on the faulty premise that the Free Exercise Clause

protected beliefs but not conduct, which was rejected in Cantwell,

310 U.S. at 303, and in Smith itself paragraphs earlier. Smith,

494 U.S. at 877-79.

7

necessary in the early days of the colonies and states

because most Americans shared the same Protestant

viewpoint and legislated accordingly, governments

were swift to turn to exemptions when conflicts

between faith and law arose, or to avoid such conflicts

in the first place. For example, colonies and the

Continental Congress exempted religious objectors

from military conscription and oath requirements.

Michael W. McConnell, Free Exercise Revisionism and

the Smith Decision, 57 U. Chi. L. Rev. 1109, 1118 and

n.41 (1990); Michael W. McConnell, The Origins and

Historical Understanding of Free Exercise of Religion,

103 Harv. L. Rev. 1409, 1467-69 (1990). Notably, in

granting conscription exemptions, the Continental

Congress confirmed that it “intend[s] no violence to

their consciences” and simply urges conscientious

objectors to do that “which they can consistently with

their religious principles” “in this time of universal

calamity.” Resolution of July 18, 1775, reprinted in 2

Journals of the Continental Congress, 1774-1789, at

187, 189 (W. Ford ed. 1905 & photo. reprint 1968). Not

even “this time of universal calamity” was sufficient

to justify infringing upon the free exercise of one’s

religion.

Moreover, at least two early cases, People v.

Phillips, N.Y. Ct. Gen. Sess. June 14, 1813, 3 and

Commonwealth v. Cronin, 2 Va. Cir. 488 (1855),

recognized religious exemptions to generally

applicable law, specifically subpoena power.

Stephanie H. Barclay, The Historical Origins of

Judicial Religious Exemptions, 96 Notre Dame L. Rev.

3 This case was not officially reported, but a record of the

arguments and the court’s ruling are found in William Sampson,

The Catholic Question in America (photo. reprint 1974) (1813).

8

55, 64, 106 (2020). In Cronin, the court began with the

presumption that religious exemptions were

appropriate and noted that no contrary precedent

existed in English precedents either. 2 Va. Cir. at 141.

Such attitudes and outcomes are entirely

consistent with the views of the First Amendment’s

drafters. The primary author, James Madison,

advocated for free exercise exemptions, supporting,

among other things, enshrining a religious exemption

from conscription in the Constitution. McConnell,

Free Exercise Revisionism, supra, at 1119 and n.42.

Madison’s broad view of religious liberty is

highlighted

in

Virginia’s

religious

liberty

constitutional provision, which he also helped to draft.

During the debate preceding the adoption of the 1776

Constitution of Virginia, Madison proposed the

following language:

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, that all

men are equally entitled to enjoy the free

exercise of religion, according to the dictates of

conscience, unpunished and unrestrained by

the magistrate, [u]nless the preservation of

equal liberty and the existence of the State are

manifestly endangered; [a]nd that it is the

mutual duty of all to practice Christian

forbearance, love, and charity towards each

other.

James Madison, Madison’s Amendments to the

Declaration of Rights, in 1 The Papers of James

Madison 174, 174-75 (William T. Hutchinson &

9

William M.E. Rachal eds., 1962) (emphasis added)

(footnotes omitted). While the final provision was

somewhat pared down, Madison succeeded in

removing language from George Mason’s original

draft which would have limited free exercise

protections to circumstances which did not “disturb

the peace, the happiness, or safety of society.” See

George Mason, Committee Draft of the Virginia

Declaration of Rights, in 1 The Papers of George

Mason 282, 284-85 (Robert A. Rutland ed., 1970).

Ultimately, Virginia’s Constitution, like the federal

Constitution, remained silent as to the limiting

principle of religious liberty.

Justice O’Connor, discussing this history, rightly

observes that the debate between Madison and Mason

over the limiting principle “would have been

irrelevant if either had thought the right to free

exercise did not include a right to be exempt from

certain generally applicable laws.” City of Boerne v.

Flores, 521 U.S. 507, 556-57 (O’Connor, J., dissenting).

The Virginia General Assembly concurred when it

enacted Thomas Jefferson’s Act for Religious

Freedom in 1786, providing that civil government

could interfere with an individual’s sincerely held

religious principles only when these “principles break

out into overt acts against peace and good order.” Va.

Code § 57-1. This attitude is a far cry from the Smith

perspective, which leaves free exercise open to death

by a thousand “neutral, generally applicable” cuts.

Madison’s opposition to a Smith-like rule is made

even clearer by his correspondence with Thomas

Jefferson about whether a bill of rights was wise at

all. In December 1787, Jefferson wrote to Madison

pushing to add a bill of rights to the proposed

10

constitution that would “provid[e] clearly and without

the aid of sophisms for freedom of religion, freedom of

the press, protection against standing armies,

restriction against monopolies, the eternal and

unremitting force of the habeas corpus laws, and

trials by jury in all matters of fact triable by the laws

of the land and not by the law of Nations.” Letter from

Thomas Jefferson to James Madison (Dec. 20, 1787),

https://founders.archives.gov/documents/Jefferson/01

-12-02-0454. Madison responded that he had not

“viewed [the omission of a bill of rights] in an

important light” “[b]ecause there is great reason to

fear that a positive declaration of some of the most

essential rights could not be obtained in the requisite

latitude.” Letter from James Madison to Thomas

Jefferson

(Oct.

17,

1788),

https://founders.archives.gov/documents/Jefferson/01

-14-02-0018. Madison explained that the “essential

rights” he was “particular[ly]” concerned about were

“the rights of conscience” because he feared that “if

submitted to public definition [they] would be

narrowed much more than they are likely ever to be

by an assumed power.” Id. Put differently, he was

concerned primarily that a bill of rights would not go

far enough in protecting rights of conscience.

Moreover, he was concerned that government would

override the “essential rights” like “rights of

conscience” given that “[r]epeated violations of these

parchment barriers have been committed by

overbearing majorities in every State.” Id. Madison

explained that despite the breadth of Virginia’s

religious liberty provision, various officials had

already attempted to limit free exercise to the

majority sect. Id. The idea that a facially neutral,

generally applicable statute might be able to impinge

11

on rights of conscience and free exercise would have

been anathema to Madison.

3. Smith

distorts

and

occasionally

entirely misrepresents the precedents

on which it purports to rely.

To mask manufacturing its new rule ex nihilo,

Smith takes liberties with the Supreme Court’s free

exercise jurisprudence, distorting the precedents on

which it purports to rely.

Nowhere is this clearer than in its treatment of

Wisconsin v. Yoder, 406 U.S. 205 (1972). Smith hails

Yoder as a prime example of its novel claim that free

exercise has never been entitled to protection from a

neutral, generally applicable law except as a tagalong afterthought in “hybrid” cases involving

another constitutional right as the primary right at

issue. Smith, 494 U.S. at 881. As framed by the Smith

Court, petitioners in Yoder succeeded only because

the case involved “the right of parents to direct the

education of their children.” Id.; see also id. at 882

(concluding that since Smith did not involve “an

attempt to regulate . . . the raising of one’s children,”

it did not fall into the Yoder exception to the neutral,

generally applicable statute rule) and 881 n.1

(emphasizing that Yoder “specifically adverted to the

non-free-exercise principle involved”).

Smith’s analysis of Yoder was fundamentally

wrong. Yoder was not a parental rights case with a

free exercise free-rider. The Yoder Court’s reasoning

focused almost exclusively on the Free Exercise

Clause. The Court, in deciding to apply a balancing

test, explained,

12

[A] State’s interest in universal education . . .

is not totally free from a balancing process

when it impinges on fundamental rights and

interests, such as those specifically protected by

the Free Exercise Clause of the First

Amendment, and the traditional interest of

parents with respect to the religious upbringing

of their children . . . .

Yoder, 406 U.S. at 214 (emphasis added). The Court

held,

[I]n order for Wisconsin to compel school

attendance beyond the eighth grade against a

claim that such attendance interferes with the

practice of a legitimate religious belief, it must

appear either that the State does not deny the

free exercise of religious belief by its

requirement, or that there is a state interest of

sufficient magnitude to override the interest

claiming protection under the Free Exercise

Clause.

Id. The longstanding “right to free exercise of

religious beliefs” was “specifically and firmly fixed” in

the Religion Clauses and “zealously protected,

sometimes even at the expense of other interests of

admittedly high social importance.” Id. Because

petitioners had raised “legitimate claims to the free

exercise of religion,” “only those interests of the

highest order and those not otherwise served can

overbalance” those claims, a burden not satisfied in

Yoder. Id. at 215. The Court made clear that “secular

considerations,” if raised, would not have carried the

day. Id. at 216 (emphasis added). “A way of life,

however virtuous and admirable, may not be

13

interposed as a barrier to reasonable state regulation

of religion if it is based on purely secular

considerations.” Id. Only a free exercise claim was

important enough to justify an exemption from this

neutral, generally applicable law.

Smith’s odd twisting of precedents is also on

display in its parade of actually-not-horribles. Smith,

494 U.S. at 888. It is hard to understand why Justice

Scalia believed citing a series of cases that employed

the compelling interest test and reached results he

deemed generally correct would prove that this test

must be abandoned. A true parade of horribles

requires a list of cases replete with bad results. A list

of good outcomes does not prove that the compelling

interest test results in harm to society. See Michael P.

Farris, Facing Facts: Only a Constitutional

Amendment Can Guarantee Religious Freedom for All,

21 Cardozo L. Rev. 689, 698 (1999).

The Smith Court recognized this tension, but its

response was less than satisfying. Justice Scalia

simply claimed, “It is a parade of horribles because it

is horrible to contemplate that federal judges will

regularly balance against the importance of general

laws the significance of religious practice.” Smith, 494

U.S. at 888 n.5. This falls short for two reasons. First,

even if balancing was not Justice Scalia’s first choice,

it certainly was not new. Courts had been “regularly

balanc[ing]” religious interests against state interests

in general laws for decades. Yoder was just one

example. Not long before Smith, Justice Scalia had

cited five cases, including Yoder, as holding “that in

some circumstances States must accommodate the

beliefs of religious citizens by exempting them from

generally applicable laws.” Edwards v. Aguillard, 482

14

U.S. 578, 617 (1987) (Scalia, J., dissenting) (citing

Hobbie v. Unemployment Appeals Comm’n of Fl., 480

U.S. 136 (1987); Thomas v. Review Bd., Indiana

Employment Security Div., 450 U.S. 707 (1981); Yoder,

406 U.S. 205 (1972); and Sherbert v. Verner, 374 U.S.

398 (1963)); see also Texas Monthly, Inc. v. Bullock,

489 U.S. 1, 38 (1989) (Scalia, J., dissenting) (citing

Sherbert, Yoder, Thomas, and Hobbie as holding that

“the Free Exercise Clause . . . required religious

beliefs to be accommodated by granting religionspecific exemptions from otherwise applicable laws”).

As these cases and the rest of the “parade of horribles”

illustrate, whatever the pitfalls of balancing, the

outcomes, at least thus far, had not been all bad.

Religious liberty had sometimes carried the day,

usually in the form of an exemption rather than a

law’s facial invalidation, and certain generally

applicable laws had been upheld when they satisfied

the compelling interest test.

Second, when considering a fundamental right,

the proper response to balancing tests’ potential

weaknesses is not to adopt a test that functionally

obliterates the fundamental right. As discussed below,

Justice Scalia could have adopted an approach similar

to that employed in the Second Amendment context

and by the Virginia Supreme Court, upholding

religious liberty in the absence of a historically

grounded exception. See Section II.A., infra. Before

Smith, at least some free exercise claims succeeded,

although arguably a few more in the parade of rightlydecided horribles should have been decided in favor of

religious liberty. But after Smith, the free exercise

constitutional landscape has been bleak indeed. See

Section I.B., infra; see also Michael P. Farris & Jordan

15

W. Lorence, Employment Division v. Smith and the

Need for the Religious Freedom Restoration Act, 6

Regent U. L. Rev. 65, 77-85 (1995) (describing lower

court cases in the aftermath of Smith, illustrating its

already-apparent ill effects).

B. Smith’s practical harms

Yet again, “the present case shows that the

dangers posed by Smith are not hypothetical.” Fulton

v. City of Philadelphia, Pennsylvania, 593 U.S. 522,

546 (2021) (Alito, J., concurring in the judgment).

Smith’s analytical deficiencies have led to predictable

problems, no less serious for their predictability,

placing religious liberty in jeopardy. First, Smith’s

test closed the door to as-applied challenges,

functionally demoting free exercise from fundamental

to second-class right and rendering the Free Exercise

Clause toothless against modern challenges to

religious liberty. Second, Smith’s rhetoric provided

lower courts with tools to circumvent even the limited

protection of Smith through unfair burden-shifting.

1.

Smith’s foreclosing of as-applied

challenges demoted free exercise to a

second-class right.

The real rule emerging from Smith is this: Laws

which facially deny the free exercise of religion are

presumptively unconstitutional under the Free

Exercise Clause; laws which deny the free exercise of

religion as applied to a religious objector are never

unconstitutional. Justice Scalia admitted as much,

writing, “We cannot afford the luxury of deeming

presumptively invalid, as applied to the religious

objector, every regulation of conduct that does not

16

protect an interest of the highest order.” Smith, 494

U.S. at 888. As noted above, however, Justice Scalia’s

fears were groundless. He himself admitted that his

parade of horribles was not a parade of horrible

outcomes—the Court had managed to reach outcomes

he thought were correct in cases involving neutral,

generally applicable statutes, without employing his

new test. Moreover, contrary to his assertion that “the

cases we cite have struck ‘sensible balances’ only

because they have all applied the general laws,

despite the claim for religious exemptions,” Smith,

494 U.S. at 888 n.5, Yoder provides a prime example

of a case where the Court granted a religious

exemption—which Justice Scalia thought correct—

from the neutral, generally applicable law.

Additionally, one could question the necessity of

upholding some of the generally applicable laws in his

parade of horribles. For example, religious objectors

are statutorily allowed to opt out of military service,

and Madison supported constitutionalizing this

exemption. Where is the harm in permitting this

same outcome on a constitutional basis?

The result of Justice Scalia’s irrational fears is

that litigants are forced into an all-or-nothing posture

when making free exercise claims that is unique to

this fundamental right, or into relying on another

right entirely. In no other First Amendment context

are litigants precluded from requesting and receiving

exemptions from laws infringing upon another

constitutional right. See, e.g., U.S. v. Grace, 461 U.S.

171, 178-79 (1983) (free speech as-applied challenge);

Time, Inc. v. Hill, 385 U.S. 374, 390-91 (1967) (free

speech and free press as-applied challenge);

Dombrowski v. Pfister, 380 U.S. 479, 489 (1965) (free

17

expression as-applied challenge); see also Cornerstone

Bible Church v. City of Hastings, 948 F.2d 464, 47273 (8th Cir. 1991) (upholding the district court’s

dismissal of Cornerstone’s free exercise claim, but

reversing

the

summary

judgment

against

Cornerstone’s free speech and equal protection claims

and allowing a “hybrid rights” claim based on that

reversal).

And since it is not difficult to cloak religious

animosity in facially neutral, generally applicable

statutes, Madison’s fears that a federal bill of rights

would not adequately protect rights of conscience

appear to have been justified. As Judge Posner wrote

in his concurring opinion in Miller v. Civil City of

South Bend, 904 F.2d 1081, 1102-03 (7th Cir. 1990)

(en banc) (citations omitted), “the principle derived

from the free-exercise clause of the First Amendment

[is] that government must accommodate its laws of

general applicability to the special needs of religious

minorities[, and] that principle is moribund after

Employment Division v. Smith.”

2. Smith’s divorce from history and text

invites unfair burden-shifting like that

experienced by Petitioners below.

The improper burden-shifting experienced by

Petitioners in the courts below is symptomatic of what

happens when the exercise of a fundamental

constitutional right is made contingent on an

ahistoric, atextual test like that adopted in Smith.

Smith’s rhetoric provided lower courts with tools to

circumvent even Smith’s limited protection through

unfair burden-shifting. By emphasizing its belief that

the Free Exercise Clause does not apply to neutral,

18

generally applicable laws, assuming that the law in

question was in fact neutral and generally applicable,

and noting there was “no contention” that there was

a hybrid right at issue, the Smith Court, perhaps

inadvertently, left the false impression that lower

courts could take the same cavalier approach in

future cases and place all burden of proving that a law

was not neutral or generally applicable, or that the

Free Exercise Clause was otherwise triggered, on the

party whose rights were burdened. See Smith, 494

U.S. at 878, 882. Of course, the parties in Smith had

had no meaningful opportunity to brief these

questions, given that the Supreme Court created the

new “neutral, generally applicable law” rule sua

sponte in Smith after rejecting it decisively multiple

times in the prior decade and without requesting

supplemental briefing on the issue. See, e.g., Thomas,

450 U.S. 707 (1981); Bowen v. Roy, 476 U.S. 693

(1986); Hobbie, 480 U.S. 136 (1987); see also Farris &

Lorence, Employment Division v. Smith, supra, at 7275 and n.27. Nonetheless, the Smith Court did make

clear, though not as clear as it could have done, “that

where the State has in place a system of individual

exemptions, it may not refuse to extend that system

to cases of ‘religious hardship’ without compelling

reason.” Smith, 494 U.S. at 884. Its rule only applied

to an “across-the-board . . . prohibition on a particular

form of conduct.” Id.

The Supreme Court post-Smith has repeatedly

held that laws with language that fell short of “this

applies to everyone across the board” are subject to

strict scrutiny. See, e.g., Fulton, 593 U.S. at 534-35

(declining to grant the City and intervenorrespondents’ request to “apply a more deferential

19

approach in determining whether a policy is neutral

and generally applicable in the contracting context”

and holding that “the inclusion of a formal system of

entirely discretionary exceptions . . . renders the

contractual non-discrimination requirement not

generally applicable”); Kennedy v. Bremerton Sch.

Dist., 597 U.S. 507, 526 (2022) (citing Fulton, 593 U.S.

at 533-34) (holding that “[a] government policy will

fail the general applicability requirement if it

‘prohibits religious conduct while permitting secular

conduct that undermines the government's asserted

interests in a similar way,’ or if it provides ‘a

mechanism for individualized exemptions,’” and

holding the rule not generally applicable because the

requirement that coaches supervise student-athletes

after games was “not applied in an evenhanded,

across-the-board way”); see also Capitol Hill Baptist

Church v. Bowser, 496 F. Supp. 3d 284, 299 (D.D.C.

2020) (correctly placing the burden on the

Government to establish that a religious exemption

would not be comparable to the other statutory

exemptions and finding that while “[t]he District

attempts to distinguish the risks posed by mass

‘protest marches’ from those posed by ‘worship

services in which individuals stand in place for long

periods of time,’” “it marshalled no scientific evidence

on this point”).

Nonetheless, lower courts continue to improperly

shift the burden for establishing general applicability,

necessitating Supreme Court intervention. Compare

Tandon v. Newsom, 992 F.3d 916 (9th Cir. 2021)

(attempting the same comparability analysis

employed below) with Tandon v. Newsom, 593 U.S. 61,

62-63 (2021) (citation omitted) (reversing the Ninth

20

Circuit’s denial of an injunction pending appeal and

holding that the government “must do more than

assert that certain risk factors ‘are always present in

worship, or always absent from the other secular

activities’ the government may allow”); see also, e.g.,

Roman Catholic Diocese v. Cuomo, 592 U.S. 14 (2020);

Harvest Rock Church v. Newsom, 141 S. Ct. 889

(2020); South Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716 (2021); Gish v. Newsom, 141

S. Ct. 1290 (2021); Gateway City Church v. Newsom,

141 S. Ct. 1460 (2021).

So too here. The California Court of Appeal held

that “Calvary Chapel has not shown” a lack of general

applicability, although it admitted multiple

exemptions existed. People v. Calvary Chapel San

Jose, 2025 Cal. App. Unpub. LEXIS 2244 at *52 (Apr.

15, 2025) (Pet. App. 41a). The court did not require

the Government to show that the multitudinous and

varied statutory exemptions were not comparable to

the narrow religious exemption requested by

Petitioners. Id.

This error should be corrected, and the root

problem, Smith itself, put to rest.

II. THE SUPREME COURT SHOULD ADOPT A

FREE

EXERCISE

ANALYSIS

THAT

AFFORDS

FREE

EXERCISE

THE

PROTECTION A FUNDAMENTAL RIGHT

DESERVES AND THE FIRST AMENDMENT

PROMISES.

Smith should go. “Yet what should replace Smith?”

Fulton, 593 U.S. at 543 (Barrett, J., concurring). We

offer two suggestions.

21

A. To ensure that the fundamental right to

free exercise of religion is not infringed,

this Court should honor religious

convictions in the absence of a

historically grounded exception.

Given the strong text of the Free Exercise Clause,

the clear original meaning confirmed by its drafters

and adopters’ communications on the subject, and

this Court’s long history recognizing the fundamental

importance of religious liberty, free exercise of

religion should be afforded the highest level of

protection.

Far from being a second-class right, free exercise

of religion was the right Madison was particularly

anxious to protect with the “requisite latitude.” Letter

from James Madison to Thomas Jefferson (Oct. 17,

1788),

https://founders.archives.gov/documents/Jefferson/01

-14-02-0018. Perhaps for this reason, the First

Amendment is silent as to a limiting principle—to

avoid giving government tools to creatively restrict

religious liberty as Madison had already seen the

Virginia General Assembly attempt. Id. As other

scholars have suggested, this omission makes the

First Amendment’s free exercise protections arguably

broader than those guaranteed by state constitutional

provisions, which usually include “peace and public

safety” or other provisos. See, e.g., Nestor, supra, at

972.

One aspect of Smith which does hold water is its

concern that the compelling interest test invites

arbitrary judgments as courts attempt to “balance

against the importance of general laws the

22

significance of religious practice.” 494 U.S. at 889 n.5.

While its suggested parade of horribles lacks horror

as explained above, the Court correctly recognized the

inherent difficulty in fairly applying balancing tests

without a tangible reference point. Even prior to

Smith, this Court did not always “apply a genuine

‘compelling interest’ test,” but rather “a far more

relaxed standard” below that afforded to other

fundamental rights, albeit one step above rational

basis review. McConnell, Free Exercise Revisionism,

supra, at 1128. Moreover, while this trend toward

heightened but not truly strict scrutiny is not

necessarily unique to free exercise, see McConnell,

Free Exercise Revisionism, supra, at 1127 n.89, free

exercise cases have arguably suffered the most. See

U.S. v. Lee, 455 U.S. 252, 262-63 (Stevens, J.,

concurring) (observing that the claimed interests are

so weak that the Court must not be applying strict

scrutiny).

Therefore, we propose that this Court model its

jurisprudence on the Virginia Supreme Court’s free

exercise analysis in Vlaming v. West Point School

Board, 895 S.E.2d 705, 720 (Va. 2023). That decision

carefully parsed Virginia’s free exercise constitutional

provision, drafted by the same men who drafted the

federal First Amendment, and that provision appears

to be the closest analog to the broad freedom intended

by the Framers. While the justices were careful to

note that they reached their decision based on

Virginia’s provision rather than the federal one, not

being in a position to overrule Smith, much of the

decision’s interpretive analysis applies with equal

persuasiveness to the federal Free Exercise Clause.

The Virginia Supreme Court discussed the Framers’

23

debate over limiting principles and concluded that

“the best inference to draw from this textual omission

of a limiting principle, as Justice O’Connor observed,

is that ‘the Virginia Legislature intended the scope of

its free exercise provision to strike some middle

ground between Mason’s narrower and Madison’s

broader notions of the right to religious freedom.’”

Vlaming, 895 S.E.2d at 720 (quoting Boerne, 521 U.S.

at 557 (O’Connor, J., dissenting)). Mason’s approach

protected free exercise “unless, under color of religion,

any man disturb the peace, the happiness, or safety of

society.” Id. at 719. Under Madison’s approach, “all

men are equally entitled to enjoy the free exercise of

religion, according to the dictates of conscience,

unpunished and unrestrained by the magistrate,

[u]nless the preservation of equal liberty and the

existence of the State are manifestly endangered.” Id.

The Virginia General Assembly, and now the Virginia

Supreme Court, ultimately concluded that “civil

government could interfere with an individual’s

sincerely held religious ‘principles only when these

principles break out into overt acts against peace and

good order.’” Id. at 720 (citation omitted).

To determine whether the behavior in question

constituted an “overt act[] against peace and good

order,” the Vlaming court looked to history to see

whether the behavior was something that had

historically been considered an overt breach of peace

and good order and hence subject to regulation, id. at

7224 , rather than arbitrarily balancing interests in

4 This sort of analysis has been employed by this Court in

other contexts, including the Second and Fourth Amendments.

24

the abstract. “[O]nly a distinct subcategory of

unlawful behavior,” not “all behaviors that may

conceivably be regulated by all government laws,

edicts, and policies,” qualifies as the requisite overt

act. Id. at 722 (citing John A. Ragosta, Wellspring of

Liberty: How Virginia's Religious Dissenters Helped

Win the American Revolution and Secured Religious

Liberty 155-60 (2010); Michael W. McConnell,

Freedom from Persecution or Protection of the Rights

of Conscience?: A Critique of Justice Scalia's

Historical Arguments in City of Boerne v. Flores, 39

Wm. & Mary L. Rev. 819, 834-37 (1998); Nestor, supra,

at 977-99. For example, actions that are malum in se,

like murder, kidnapping, and trespass, have

historically been prohibited as clear breaches of peace

and good order, even though someone could claim his

religion

required

human

sacrifice,

forcible

proselytization, or protesting in a particular location.

See McConnell, Origins, supra, at 1464. By contrast,

the maintenance of peace and societal order does not

turn on total compliance with the sort of masking-incertain-locations-based-on-political-discretion

requirements at issue in this case, which have no

historical antecedents, especially as applied to

religious practice.

B. At minimum, laws which infringe upon

the free exercise of religion should be

required to survive strict scrutiny.

Alternatively, if the Court chooses not to employ

the historical exceptions test, it should return to true

See, e.g., D.C. v. Heller, 554 U.S. 570, 633 (2008); Florida v.

Jardines, 569 U.S. 1, 6-9 (2013).

25

strict scrutiny and require laws that infringe upon

free exercise to further a truly compelling interest

using the least restrictive means possible. “[O]nly

those interests that are of the highest order and those

not otherwise served can overbalance legitimate

claims to free exercise of religion.” Yoder, 406 U.S. at

215. As the Framers strove to ensure, free exercise

should be given no less protection than any of the

other fundamental rights this Nation holds dear.

CONCLUSION

For the foregoing reasons, the Supreme Court

should grant the petition for a writ of certiorari and

reverse the judgment below.

Respectfully submitted,

MICHAEL P. FARRIS

Counsel of Record

SARAH E. SIU

NATIONAL RELIGIOUS

BROADCASTERS

800 Maryland Avenue NE

Washington, D.C. 20002

571-359-6000

mfarris@nrb.org

ssiu@nrb.org

Counsel for Amicus Curiae

National Religious

Broadcasters

January 14, 2026