# Amicus Curiae Brief — City of Boerne v. Flores > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1542%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1997 - **Citation:** 521 U.S. 507 ## Text sia ak a Supreme Court; U.S. ( 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 AE SAU CANE ALERT EERIE NEE LITE TENNENT AIOE PTL ENE CORE Be seb Se Seine enn nA ih Balmar Legal Publishing Department, Washington, D.C. (202) 682-9800 , ii it? \): ca i 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. ii 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 a 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 ee iv 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 2 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). i | i j en aT TE 3 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 4 (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. 5 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 6 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. 7 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 8 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 ee eeeneneeaeaaaeeiitl 9 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 10 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 ee 11 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- 12 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 a APSA anti uel eben ON LO a LN eI eee 13 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- 14 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. 15 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 16 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. 17 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, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1542%3A21. Public record. Not legal advice.