Amicus Curiae Brief — City of Boerne v. Flores

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( 4 FILED

No. 95-2074 JAN 10 1997

IN THE CLERK

Supreme Court Of Che United States

October Term, 1996

CITY OF BOERNE, TEXAS,

Petitioner,

VS.

P.F. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent,

and

UNITED STATES OF AMERICA

Intervenor-Respondent.

On Petition For Writ Of Certiorari To The

United States Court Of Appeals For The Fifth Circuit

BRIEF OF AMICUS CURIAE

IN SUPPORT OF RESPONDENT

John W. Whitehead

Counsel of Record

Rita R. Woltz

Kelly Shackelford

THE RUTHERFORD INSTITUTE

1445 E. Rio Road

Charlottesville, Virginia 22901

(804) 978-3888

James A. Hayes, Jr.

28202 Cabot Road, Suite 300

Laguna Niguel, California 92677

(714) 365-5656

Brian L. Day

One Park Plaza, Suite 1250

Irvine, California 92714

(714) 263-1035

January 10, 1997

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Balmar Legal Publishing Department, Washington, D.C. (202) 682-9800

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QUESTION PRESENTED

Whether the pre-Employment Division v. Smith (Smith)

free exercise decisions of this Court correctly used the com-

pelling interest test to more clearly reflect the historical ori-

gins and intent of the Free Exercise Clause, thus supporting

the Religious Freedom Restoration Act’s (RFRA’s) constitu-

tionality and a reconsideration of Smith, and answering the

question of whether Congress exceeded its authority under

Section 5 of the Fourteenth Amendment of the United States

Constitution in the negative.

TABLE OF CONTENTS

PUES TIGIN PRESENTED .....ceesccosesvoeserscssesocessessosessoesseece,.....

oo let te and gt SO ER ii

TABLE OF AUTHORITIES ..........cecceccescescescesseesoeseseoeseesss.... lil

PW SOI CAEN oocrchchncrescserssessee eck I

Il. INTRODUCTORY STATEMENT ...cccccccccccccosees-... I

Il. RECONSIDERATION OF SMITH IS

SQUARELY WITHIN THE SCOPE OF

THIS CASE BECAUSE THE ISSUE OF

SMITH’S CONTINUED VALIDITY IS

ENCOMPASSED BY PETITIONER’S

CERTIFIED QUESTION .u.......ccesccssssccscssscsseccscosce 3

ll. THE USE OF THE COMPELLING IN-

TEREST TEST FOR DECIDING FREE

EXERCISE CLAUSE CLAIMS, AS CODI-

FIED BY RFRA, IS CONSISTENT WITH

THE HISTORICAL UNDERSTANDING

OF THE FREE EXERCISE OF RELIGION........... 5

['V. THE PRE-SMITH DECISIONS OF THIS

COURT IN FREE EXERCISE CASES

EMBODY THE HISTORICAL UNDER-

STANDING THAT RELIGIOUS PRAC-

TICES ARE PROTECTED FROM THE

BURDENSOME EFFECTS OF NEUTRAL

LAWS OF GENERAL APPLICABILITY............. 12

oe eee pg A NRA NOT ARG 17

ili

TABLE OF AUTHORITIES

Page |

FEDERAL CASES

Bob Jones University v. United States, 461 U.S. 574,

NG CIN ciicitansiancicessitasinitaitneiieiateigsiulaictibeinilidedealeriniietinlsendamaeiitn 13

Bowen v. Roy, 476 U.S. 693 (1986)...........csssccssssecesereees 14, 16

Brown \. Socialist Workers ‘74 Campaign Committee

CD, SF Ga SEF Ce sev nctinianiiantsnnsaninsneninlenniadisitnndinns 13

Cantwell v. Connecticut, 310 U.S. 296, 304-07

ETD ncovihipusnionecinaseinitesiuitiiceentbianesncinestinasbainaiticimncins 13, 14, 15, 16

Church of the Lukumi Babalu Aye v. City of Hialeah,

FD RP CaP On ticenseinivereininstenernsannnanigunmetiionniitnnnens passim

Employment Division v. Smith, 494 U.S. 872 (1990).....passim

Frazee v. Illinois Department of Employment Security,

SP Be SiR, See CG cescesrinnisctiitninstibedeobetintianteinn 13, 15 |

Hernandez v. Commissioner, 490 U.S. 680, 699 |

CEES cccorcunesnnscnitngiinentianinniscusdupliiniingsinipenititniansmeaiie 13 |

Hobbie v. Unemployment Appeals Commission, 480 |

Sheaie Sly BRS CEFF Pasees cecinineabinicticintiiinnctioiapenientiins 13, 14, 15

Hustler v. Falwell, 458 U.S. 46 (1988).........:cssssccsssseseseeesenes 13

Jimmy Swaggart Ministries v. Board of Equalization,

GES Ua os FE Fe peiietiniicinemnnions 13

Lyng v. Northwest Indian Cemetery Protective Asso- !

Chaat, ES I: SP Ce tinitincnitaiiithisstitatetiaaliincennivenin 16

Minersville School District v. Gobitis, 310 U.S. 586

(SITE nisisiscetvnniasinipenpitedtinniecsibininbiibuiieidabaisnaiinaliineeceteieeee 14 |

NAACP v. Alabama, 357 U.S. 445 (1958) .ccccsssssssssessesseeseene 13 |

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ..........006. 16

Reynolds v. United States, 98 U.S. 145 (1879)... 14, 16

TABLE OF AUTHORITIES (CONT’D)

Page

FEDERAL CASES (cont’d)

Sherbert v. Verner, 374 U.S. 398, 403

ETI -scchosiasiteashetashedlacaiakadibionalataianelenetieastnapes 5, 12, 13, 14, 15

Thomas v. Review Board, 450 U.S. 707, 718 (1981) ......13, 15

United States v. Lee, 455 U.S. 252, 257-58 (1982).........13, 16

West Virginia Board of Education v. Barnette, 319

Secs GF Ue hecieielilesleniiibuitchiciiniteticidbiaianaaeabeiiianiseciiticinins 14

Yoder v. Wisconsin, 406 U.S. 205, 215-29 (1972) ....13, 15, 16

CONSTITUTIONS

Fas Me, TIE © cessestinncunsecielnninisticieniasiemninamiannbiitediincaned passim

Oi NU I, oe A We &

FEDERAL STATUTES

Religious Freedom Restoration Act, 42 U.S.C.

ery OE OW iarnnccsnsnisiernssntnincteviccasanieneentovisnnninasin passim

MISCELLANEOUS AUTHORITY

Douglas Laycock, The Supreme Court’s Assault on

Free Exercise, and the Amicus Brief that was Never

Filed, & 1.L. & Relig. 99 (1990)......cccessrrsceserssseseee dey Jy 4, 13

Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

PEG, Sie TOE. BIE Ci eictnideccinnithaditesteiaiiabtactieteienennie passim

Michael W. McConnell, Free Exercise Revisionism

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

BRIEF OF AMICUS CURIAE'

I. INTRODUCTORY STATEMENT

A key issue which the Petitioner has asked this Court to

consider is whether the Religious Freedom Restoration Act

(RFRA) provides religious people with more protection than

the United States Constitution requires. In order to answer

this question, the Court must reconsider its decision in Em-

ployment Division v. Smith, 494 U.S. 872 (1990), in light of

the history of the Free Exercise Clause and pre-Smith prece-

dent.

The Rutherford Institute is a non-profit organization pro-

viding legal services in defense of civil and religious liberties.

The Institute believes this issue is critical to the fundamental

right of the free exercise of religion for all Americans. As

amicus curiae in this matter, The Rutherford Institute thus

urges the Court to take this opportunity to reject its holding in

Smith that neutral laws of general applicability cannot offend

the Free Exercise Clause. In doing so, the Court would re-

Store the compelling interest test for deciding free exercise

cases and uphold the constitutionality of the Religious Free-

dom Restoration Act (RFRA) on the basis of its proper en-

actment by Congress under Section 5 of the Fourteenth

Amendment.

Justice Souter noted in Church of the Lukumi Babalu Aye

v. City of Hialeah, the Court’s last free exercise decision, that

the Smith test should be reexamined “in the next case that

would turn on its application.” 508 U.S. 520, 564 (1993)

(Souter, J., concurring in part and concurring in the judg-

ment). Justice Souter entreated the Court to reexamine Smith

because the decision was “decidedly untypical” of the Court’s

Counsel of record for all parties have consented to the filing of this

brief and, pursuant to Rule 37, letters of consent have been filed with the

Clerk.

A ER SO le ON at

A TLR TL A Ae RR YAN A a oN A re ee cent

treatment of formally neutral, generally applicable laws in

prior free exercise cases but did not overrule those cases. /d.

a The result was “a free-exercise jurisprudence in tension with \

itself.” Jd.

Since the Smith decision, legal scholars have made im-

portant inquiries into the roots of free exercise of religion in

this country. Professor Michael W. McConnell’s The Origins

and Historical Understanding of Free Exercise of Religion,

103 Harv. L. Rev. 1409 (1990) is perhaps the most notable

work. Such works were not available to the Court at the time

it decided Smith, and if they had been, the Court may have

found the historical justification for its free exercise prece-

dents persuasive and upheld the compelling state interest test.

See Lukumi, 508 U.S. at 574-5 (Souter, J., concurring in part

and concurring in the judgment). Although this brief will

summarize analyses and the many complex arguments in fa-

vor of overturning Smith found in that scholarship on free ex-

ercise history, the Court is commended to the original works

cited for the in depth arguments which cannot be recreated in

the space permitted here. Amicus curiae encourages the Court

to re-examine Smith now in light of this scholarship and

overturn its holding.

The history and original intent of the Free Exercise

Clause establish its purpose to protect religious individuals,

including the use of exemptions. The compelling interest test

analysis effectuates this purpose. This Court’s pre-Smith

opinions thus provide the correct standard for analvzing free

exercise cases. As a result, RFRA does not attempt to give

more religious protection than the Constitution already pro-

vides. Thus, the question of whether Congress exceeded its

Section 5 power should be answered in the negative.

See Douglas Laycock, The Supreme Court's Assault on Free

Exercise, and the Amicus Brief that was Never Filed, 8 J.L. & Relig. 99,

102 (1990).

en aT TE

Il. RECONSIDERATION OF SMITH IS SQUARELY

WITHIN THE SCOPE OF THIS CASE BECAUSE

THE ISSUE OF SMITH’S CONTINUED VALIDITY

IS ENCOMPASSED BY PETITIONER’S CERTI-

FIED QUESTION

The second Question Presented in Petitioner’s Brief on

the Merits calls for a reconsideration of Smith:

2. Whether Congress violated the constitutional

balance between its power under Section 5 of thie

Fourteenth Amendment and fundamental principles

of federalism by commandeering state and local

governments to be agents of a federal policy to ac-

commodate religious exercise more than the Con-

stitution requires.

Brief of Petitioner’s, page i.

An essential element of Petitioner’s Question is thus,

first, whether RFRA provides religious protection “more than

the Constitution requires.” If this Court’s pre-Smith decisions

provide the correct legal standard for free exercise cases,

RFRA is simply a codification of that standard dictated by the

Constitution. Only if Smith is the proper legal standard does

RFRA codify an accommodation of religious practices

greater than this Court has held the Constitution to require.

Smith did not overturn pre-Smith precedents. Lukumi,

508 U.S. at 573-4 (Souter, J., concurring in part and concur-

ring in the judgment). Instead, Smith re-characterized the

holdings of those cases in an effort to harmonize them with its

reasoning and rationalize its new standard. Michael W.

McConnell, Free Exercise Revisionism and the Smith Deci-

sion, 57 U. Chi. L. Rev. 1109, 1120-24 (1990); Douglas Lay-

. cock, The Supreme Court’s Assault on Free Exercise, and the

Amicus Brief that was Never Filed, 8 J.L. & Relig. 99, 104-06

(1990). Since the Smith rule remains fundamentally at odds

with those precedents, a genuine issue exists as to which con-

stitutional rule courts should follow. Lukumi, 508 U.S. at 574

(Souter, J., concurring in part and concurring in the judg-

ment). The Court must resolve this issue in order to answer

Petitioner’s second certified question.

There are other important reasons to reconsider Smith.

First, the Smith rule was established without briefing and oral

argument. /d. at 571-2. Rarely, if ever, has the Court decided

an issue of such magnitude, not presented by the parties or the

facts of the case, without notice and argument. See generally

Laycock, 8 J.L. & Reg. 99. Second, and related to the first

reason, Smith set forth a broader constitutional rule than was

necessary to resolve the case. /d. at 572-3. Indeed, Justice

O’Connor reached the same result as the majority by applying

the existing free exercise precedents. Jd. Finally, in the

course of making its sweeping rule, Smith did not inquire into

the roots of the free exercise of religion to interpret the origi-

nal meaning of the Free Exercise Clause. Jd. at 574-6. Before

Smith, little information existed on the history of the Free Ex-

ercise Clause in either earlier Supreme Court opinions or in

scholarly articles. Legal scholarship developed after Smith

confirms that the pre-Smith compelling interest test is consis-

tent with the original understanding that free exercise of re-

ligion was to be protected from the burdensome effects of

neutral laws of general applicability. That scholarship, some

of which is summarized below, must be considered now if

Smith’s vitality as precedent is to be secure enough to justify

considering rejection of RFRA.

In short, the Court must not only reconsider Smith as a

necessary step to determining RFRA’s constitutionality, but

also to ensure that free exercise jurisprudence is not left in an

unsettled and, to a broad spectrum of society, unsettling con-

dition.

ill. THE USE OF THE COMPELLING INTEREST

TEST FOR DECIDING FREE EXERCISE CLAUSE

CLAIMS, AS CODIFIED BY RFRA, IS CONSIS-

TENT WITH THE HISTORICAL UNDERSTAND-

ING OF THE FREE EXERCISE OF RELIGION

The Court must examine the historical roots of the free

exercise of religion in this country in order to understand the

original meaning of the Free Exercise Clause. In Religion

Clause adjudication, no less than any other area of law, Jus-

tice Holmes’ statement is most fitting: “A page of history is

worth a volume of logic.” New York Trust Co. v. Eisner, 256

U.S. 345, 349 (1921). The determination of “the ultimate

constitutional objective” as expressed by the Framers and “as

illuminated by history” is of particular relevance here. Lynch

v. Donnelly, 465, U.S. 668, 678 (1984); Walz v. Tax Commis-

sion, 397 U.S. 664, 671 (1970). This historical inquiry shows

that the long-standing method of exempting religious prac-

tices from generally applicable laws as an acceptable means

of protecting religious beliefs is more consistent with the

Framers’ intent than a position of facial neutrality.

Using this approach, after a religious person demon-

strates that a law burdens the free exercise of his or her relig-

ious beliefs, the government must show that the law serves

some compelling state interest and is the least restrictive

means for achieving that goal. If the state cannot meet its

burden, courts must grant a religious exemption. See, e.g.,

Sherbert v. Verner, 374 U.S. 398, 403 (1963). This exemp-

tion view of the Free Exercise Clause thus protects against

unintended burdens on the free exercise of religion unless the

state can demonstrate compelling need.

Ultimately, the issue of the nature and role of religion re-

duces to a question of perspective.’ The compelling interest

* From the perspective of the State, allowing exemptions is a slippery

slope which would result in anarchy. From the religious believer’s per-

spective such fears are baseless because in reality there are few proper

test forces a court to look at the case from both perspectives.

First, the court must consider the religious adherent’s per-

spective, and then it must analyze the case from the State’s

perspective.

Smith, however, advances a competing view. The indi-

vidual religious adherent’s perspective and concerns are ir-

relevant. According to Smith, the Constitution does not

require exemptions for generally applicable laws. The pro-

tection provided by the Free Exercise Clause, then, is only

against blatant attacks on specific religious practices.

McConnell, 103 Harv. L. Rev. at 1418. Using this approach,

the court asks the question from the State’s perspective, is this

law specifically directed at religious practices? If not, no

protection through exemptions is merited.

Professor McConnell argues that the appropriate analysis

of the Free Exercise Clause involves the perspective of both

the state and the religious believer. Using this analysis re-

quires the court to study the impact of the law in question on

the religious petitioner, often a minority, even if the law

makes no obvious reference to religion or has no religious

dimension to the state or majority. The pre-Smith exemptions

view is consistent with this approach and the development of

protection from the time of the colonies to the framing of the

Free Exercise Clause.

The Framers of the Free Exercise Clause had a long and

varied tradition of religious experimentation to draw on as a

result of the diversity in the colonies’ and newly independent

States’ approaches to the relationship between Church and

State. Although most of the colonies had established relig-

ions, the trend toward religious pluralism as an emerging

laws which would conceivably conflict with the free exercise of religion.

The religious perspective supports its position by claiming that proper

laws would not conflict and conduct which was disruptive of the peace

should be punished.

policy was tangibly rewarded. In those colonies without an

established religion, most notably Pennsylvania, religious plu-

ralism flourished and was rewarded with the highest levels of

immigration. /d. at 1430. The experience of governments

which supported a particular religion, on the other hand, show

that religious diversity was not a virtue and persecution of re-

ligious minorities occurred. In fact, the term “free exercise”

was first used in an American legal document when Lord

Baltimore required the governor of Maryland to abstain from

persecuting Christians in general and Roman Catholics in

particular. W. Russell, The Land of Sanctuary (dd ed. 1908)

at p. 130.

The trend towards greater protection of religion continued

throughout other state legal documents. The Rhode Island

Charter, for instance, used the term “liberty of conscience” to

protect the free exercise of religion. The only restriction on

this freedom was that it could not conflict with laws established

to keep the peace. McConnell, 103 Harv. L. Rev. at 1426.

Similar protection was later enacted in other colonies and were

the most common expressions of the freedom in the constitu-

tions of the newly formed states. The free exercise provisions

expressly overrode any law contrary to religious exercise; and

they limited the free exercise of religion only as necessary for

the preservation of the peace as opposed to being subject to the

entire body of the law. Jd. at 1427. It is this tradition of toler-

ance within limits which is the precursor of the exemption view

of the Free Exercise Clause.

The most direct influence on the development of relig-

ious tolerance in the constitutions of several of the newly

formed states and the federal constitution was the effect of the

writings of John Locke and their impact on Thomas Jeffer-

son’s Bill for Establishing Religious Freedom. /d. at 1430-31.

Locke determined that religious intolerance was an indication

of poor government and would result in civil disruption be-

cause religious diversity could not effectively be contained,

and seeking to prevent it would only cause the disruption

which the government sought to avoid. If a free exercise con-

flict developed, however, Locke believed that the State’s view

was supreme and the individual could either comply with the

law or disobey it according to the dictates of religion and ac-

cept the punishment of the State. /d. at 1433-34. Locke’s view

is consistent with the no-exemption policy of Smith. The de-

velopment of religious freedom, however, did not stop with

Locke.

Immediately after the American Revolution, the prevail-

ing view was that State sponsorship of religion was inimical

to the vitality of religion and would improperly subject it to

State control. /d. at 1438-39. The role of the State under this

view was that it should provide protection and non-

interference with the practice of religion. In return, religious

groups would inculcate their members with religious faith

and, as a by-product, with virtue or public morality. This

view prevailed over the old model under which the State sup-

ported religion to derive the benefit of public morality. /d. at

1441-43. In light of this new view, Locke’s view of religious

tolerance was deemed insufficiently protective of the free ex-

ercise of religion.

Additionally, the advent of judicial review and its pro-

tection of individual rights as a check on the power of the

State led to further expansion of the doctrine of free exercise

of religion. As a result of the constitutional grant of the re-

sponsibility to the courts to enforce the boundary between the

power of the State and the rights of the individual, the court

was empowered and obligated to determine what religious

freedom requires and to protect it through the use of exemp-

tions. /d. at 1445.

Thomas Jefferson’s view of the role of religion, although

similar to Locke’s, represents an expansion of freedom of re-

ligion. Jefferson believed the role of the State was to act to |

prevent injury to others, or in other words, secure the peace.

Toward this end, he believed that religious opinion or belief

was not properly the subject of governmental action. This

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belief extended to his rejection of State funded or sponsored

religion. On the other hand, he believed that actions or con-

duct were the province of the State, and therefore, violations

of the law should be prosecuted. /d. at 1451. Further ex-

panding the view of religious free exercise, James Madison

advocated a system in which the demands of religion would

take precedence over the secular law in those matters con-

cerning religion. /d. at 1453.

Most state constitutions comported with Madison’s

views on giving precedence to the individual’s religious du-

ties over the power of the State, and specifically included

protection for the free exercise of religious beliefs. These free

exercise provisions were stated affirmatively unlike the Jef-

fersonian view which, like that of Locke, merely tolerated re-

ligion. Professor McConnell relies on the religious freedom

protections found in the various state constitutions as support

for his interpretation of the federal constitution on the grounds

that they are:

the most direct evidence of the original under-

standing, for it is reasonable to infer that those who

drafted and adopted the first amendment assumed

the term “free exercise of religion” meant what it

had meant in their states. The wording of the state

provisions thus casts light on the meaning of the

first amendment.

Id. at 1456.

Although all of these provisions protected the free exer-

cise of religion, there were differences in the scope of the

protection. The more expansive statement applied to all ac-

tions with a religious motive, with the limitation of preserving

the peace and safety of the remainder of the community. The

other constitutions protected religious conduct only in the

context of “worship.” The term “worship” was used to limit

the freedom to the rituals of religion. Professor McConnell

concludes that the fact that the federal constitution used the

more expansive expression of the freedom was deliberate in

light of the numerous examples of a narrower expression of

the freedom. /d. at 1460. As a further indication of the direc-

tion of thought on the issue, he points out that subsequent

state constitutions followed the more expansive definition. /d.

at 1461.

Under these state constitutions, then, free exercise was

generally limited only to prevent disturbances of the peace

and safety of the remainder of the community. /d. at 1462.

The presumption, therefore, was that the right of free exercise

prevails in every instance except where the religious act vio-

lates a peace and safety regulation or when the religious act

would trespass on the private rights of another. Thus, this ap-

proach valued freedom of religion and the perspective of the

individual above a state’s interest in areas not affecting the

peace or public safety.

An examination of controversies prior to the passage of

the United States’ Free Exercise Clause supports the conclu-

sion that the right of free exercise was intended to be an af-

firmative statement which permitted exemptions from

generally applicable laws for religious acts, subject to the

limitation that the religious acts not violate laws preserving

peace, safety and the private rights of others. /d. at 1466. But

see, Philip A. Hamburger, A Constitutional Right of Religious

Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev.

915 (1992). The issue of exemption arose only rarely in the

largely homogeneous Protestant colonies. When it did arise,

it usually involved oath requirements, military conscription or

religious assessments. Jd. Most often, an exception was cre-

ated to the requirement to accommodate the religious convic-

tion. Id. at 1467.

Another controversy supporting the exemption view |

arose because the federal Constitution did not contain general

protections for religion. One argument stated that as the fed-

eral government is one of enumerated powers only, the ab-

sence of any power to create laws affecting religion provides

protection for religion. This argument was rejected by sup-

porters of a free exercise amendment on the grounds that the

many enumerated powers were more than sufficient to burden

the exercise of religion.

The second argument asserted that the newly created

system of checks and balances in conjunction with the exist-

ing religious pluralism would assure that no single group

could gain sufficient power to enable it to oppress or frustrate

the religious preferences of any other group. This argument

was rejected on the grounds that, although it was adequate as

far as it went, it did not provide sufficient protection against

unwitting oppression of minority groups. The proponents of a

free exercise amendment worried that minority groups with

sufficient influence at the state level would not have equiva-

lent influence at the national level and could be subjected to

laws of general application which would tend to oppress re-

ligion. /d. at 1479-80. Therefore, the passage of the Free Ex-

ercise Clause itself lends further support to the idea that the

Founders intended to provide exemptions as a means of pro-

tecting minority religions from laws of general application.

After debate, the final version of the amendment pro-

tected the free exercise of religion. Professor McConnell pro-

vides a detailed explanation of the development of the final

version and possible reasons for differentiation in word

choice. He concludes that the decision to use the word

“religion” alone, instead of, or in conjunction with, the phrase

“rights of conscience” was to provide a broad protection to

organized religion. Jd. at 1488-94.

The use of the word “religion” instead of “rights of con-

science” is significant because it recognized that when relig-

ious convictions differed from the secular law, the individual

was torn between two sovereigns, the State and God. This

type of conflict was seen as materially different from a situa-

tion where an individual’s moral judgment conflicted with a

law. This was a difference in kind which was deemed worthy

of special protection. Providing specific protection for relig-

ious differences was entirely consistent with the world view

of the drafters. The Drafters believed that religious beliefs

merited special protection, not because those beliefs were

qualitatively superior to non-religious judgments, but because

of the conflict between dual sovereigns, both of whom de-

manded obedience that was beyond the individual’s control to

harmonize. Jd. at 1496-97.

It follows, then, that the Sherbert rule and its progeny

allowing exemptions are more consistent with the under-

standing of the drafters of the First Amendment. See Lukumi,

508 U.S. 574-6 (Souter, J., concurring in part and concurring

in the judgment). The history and original intent of the Free

Exercise Clause support protection of religious individuals

through providing exemptions, not merely prohibiting anti-

religious discrimination. /d. at 1512. The compelling interest

test is tailored to protect individual rights and to allow for ex-

emptions when government has not used the least restrictive

means in achieving its interest. The history and practice of

allowing exemptions, the intent of the Founders, the state

constitutions and the pre-Free Exercise Clause controversies

all support the practice of allowing exemptions from generally

applicable laws. /d. at 1511. RFRA’s use of the compelling

interest test, therefore, merely encapsulates the purpose of the

Free Exercise Clause and does not add to the Constitution. As

such, the question of whether Congress exceeded its Section 5

power should be answered in the negative.

IV. THE PRE-SMITH DECISIONS OF THIS COURT

IN FREE EXERCISE CASES EMBODY THE HIS-

TORICAL UNDERSTANDING THAT RELIGIOUS

PRACTICES ARE PROTECTED FROM THE

BURDENSOME EFFECTS OF NEUTRAL LAWS

OF GENERAL APPLICABILITY

Prior to Smith, the Court’s decisions in free exercise

cases consistently embodied the concept that the Free Exer-

cise Clause required not only formal neutrality, which would

eeepc eee _

ont eee

APSA anti uel

eben ON LO a LN eI eee

prohibit only those laws whose object is to discriminate

against religion, but also substantive neutrality, which would

additionally require exempting religious practices from for-

mally neutral laws. Lukumi, 508 U.S. at 562-6 (Souter, J.,

concurring in part and concurring in the judgment). The ar-

ticulated rule applied in each of those cases was that a com-

pelling government interest must be demonstrated to justify

any substantial burden placed by the government on religious

practice. There is no doubt that the Court applied heightened

scrutiny in those cases. See, e.g., Jimmy Swaggart Ministries

v. Board of Equalization, 493 U.S. 378, 384-85 (1990); Her-

nandez v. Commissioner, 490 U.S. 680, 699 (1989); Frazee v.

Illinois Department of Employment Security, 489 U.S. 829,

829 (1989); Hobbie v. Unemployment Appeals Comm’n, 480

U.S. 136, 141 (1987); Bob Jones University v. United States

461 U.S. 574, 604 (1983); United States v. Lee, 455 U.S. 252,

257-58 (1982); Thomas v. Review Board, 450 U.S. 707, 718

(1981); Yoder v. Wisconsin, 406 U.S. 205, 215-29 (1972);

Sherbert v. Verner, 374 U.S. 398, 403 (1963); Cantwell v.

Connecticut, 310 U.S. 296, 304-07 (1940). See also Lukumi,

508 U.S. at 565-6 (Souter, J., concurring in part and concur-

ring in the judgment).

In none of those cases did the Court inquire into the

original meaning of the Free Exercise Clause in developing

and applying the compelling interest test (nor did it in Smith),

Lukumi, 508 U.S. at 574-5 (Souter, J., concurring in part and

concurring in the judgment). Yet, that test emerged from the

Court’s natural reading of the Free Exercise Clause as a re-

striction on government’s power to burden religious practices,

whether by a law’s object or by its unintended effect.

Such a reading is consistent with the Court’s treatment of

other First Amendment rights, frequently affording them ex-

ceptions from neutral, generally applicable laws. Laycock, 8

J.L. & Relig. at 103-04 (citing Brown v. Socialist Workers ‘74

Campaign Committee (Ohio), 459 U.S. 87 (1982); NAACP v.

Alabama, 357 U.S. 445 (1958)(political parties and move-

ments exempted from facially neutral disclosure laws); Hus-

tler v. Falwell, 458 U.S. 46 (1988)(creating special defenses

for media against facially neutral tort law).

It is apparent from a review of Section III above that the

historical origins of the Free Exercise Clause provide consid-

erable support for the compelling interest test which the Court

derived from a plain reading of the text. It certainly under-

mines the remark in Smith that the compelling interest test

“contradicts both constitutional tradition and common sense.”

Smith, 494 U.S. at 885. Rather, it reveals how fully pre-Smith

cases embodied the understanding of the Framers of the Free

Exercise Clause, and how far Smith’s rule diverges from it.

Smith is inconsistent with free exercise precedent, which

dates from Sherbert. Instead of adhering to this precedent, the

Court relied primarily on cases which have been overruled or

were minority positions. For instance, the Court relied on and

quoted extensively from Minersville School District v. Gobi-

tis, 310 U.S. 586 (1940), without mentioning that this case

was essentially overruled in West Virginia Board of Educa-

tion v. Barnette, 319 U.S. 624 (1943). Smith, 494 U.S. at 879.

The Court also quoted from the three-justice plurality opinion

in Bowen v. Roy, 476 U.S. 693 (1986), even though that

opinion was not followed by five other Justices in separate

opinions. Smith, 494 U.S. at 883. Bowen was later expressly

rejected in Hobbie, 480 U.S. 141 (1987). The Court also cited

an older case, Reynolds v. United States, 98 U.S. 145 (1879),

which upheld a law prohibiting polygamy, practiced then by

Mormons, but did so on the reasoning that the Free Exercise

Clause protects only beliefs, not conduct. /d. at 166-67. But

the Court later retreated from that position in Cantwell, 310

U.S. at 303-04. Even so, the Court has read Reynolds’s elabo-

ration of the evils of polygamy as standing for the compelling

interest test. See, e.g., Sherbert, 374 U.S. at 403.

In sum, these cases and their subsequent treatment by the

Court validate the Court’s continued endorsement of the com-

pelling interest test, rather than support Smith’s rejection of it.

Lukumi, 508 U.S. at 569-70 (Souter, J., concurring in part and

concurring in the judgment).

Smith’s treatment of Cantwell and Yoder, two cases

which unquestionably required exemption of religious prac-

tices from neutral laws of general applicability, is also prob-

lematic. Rather than apply those cases as pure free exercise

precedents, Smith instead re-characterizes them as “hybrids,”

involving “the Free Exercise Clause in conjunction with other

constitutional protections, such as freedom of speech and of

the press, or the right of parents . . . to direct the education of

their children.” Smith, 494 U.S. at 881-82. This hybrid dis-

tinction, however, is not supported by the text, nor the history

of the Free Exercise Clause. Even so, religious freedom was

the fundamental issue in both cases, as each was explicit in

stating. Cantwell, 310 U.S. at 303-07; Yoder, 406 U.S. at

201. Smith’s attempt, then, at distinguishing Cantwell and

Yoder as “hybrid” cases has instead shown them to be sound

free exercise precedent.

Finally, Smith tries to reconcile its conclusion with the

unemployment compensation cases involving free exercise.

Frazee, 489 U.S. 829 (1989); Hobbie, 480 U.S. 136 (1987);

Thomas, 450 U.S. 707 (1981); and Sherbert v. Verner, 374

U.S. 398 (1963). The Court noted that these were the only

free exercise cases in which the compelling interest test had

been used to invalidate a government action, and had only

done so because they involved “a context that lent itself to

individualized governmental assessment of the reasons for the

relevant conduct,” Smith, 494 U.S. at 883-4, and as such

“stand for the proposition 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 compel-

ling reason.” Id.

But as Professor McConnell has observed:

Difficulty of administration can fairly constitute at

least part of the government interest in enforcing the

law without exceptions but it is hard to see why this

concern should limit the universe of potential

claims. Moreover, if this is the distinction, it is hard

to see why the compelling interest test does not ap-

ply to many contexts other than just unemployment

compensation - indeed to the full universe of claims

governed by the due process requirement of “some

kind of hearing.”

McConnell, 57 U. Chi. L. Rev. at 1123.

Moreover, Smith’s distinction of these cases is one with-

out a difference, because most free exercise cases “resemble

the unemployment compensation cases in that they involve

individualized governmental assessments of the claimant’s

circumstances.” /d. (citing United States v. Lee, 455 U.S. 252

(1982); Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988); and O’Lone v. Estate of Shabazz, 482

U.S. 342 (1987) as examples of non-unemployment compen-

sation cases that involved such individualized governmental

assessments without the application of the compelling interest

test).

Smith, therefore, is unconvincing in its effort to achieve

its result without overturning any precedent, by relying on

cases of dubious application (Gobitis, Bowen and Reynolds),

and by distinguishing established free exercise precedent as

either not primarily about free exercise (Cantwell and Yoder)

Or as sui generis (the unemployment compensation cases).

In fact, these free exercise cases all demonstrate that the

compelling interest test was a natural outgrowth of the Court’s

plain reading of the Free Exercise Clause as requiring exemp-

tion from neutral, generally applicable laws - a reading which

now acquires added texture from the recent legal scholarship

on the historical context of the Free Exercise Clause.

CONCLUSION

The Court should uphold RFRA’s constitutionality by

reconsidering and rejecting its holding in Smith in light of

post-Smith legal scholarship, which casts serious doubt on

Smith’s consistency with the original understanding of the

Free Exercise Clause and which substantiates the consistency

of the compelling interest test with that same understanding.

Respectfully submitted,