Amicus Curiae Brief — City of Boerne v. Flores

a 1 Saprece Coat, U.S.

WN) FIEED

No. 95-2074 | IAN ] 0 1993

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF BOERNE, TEXAS,

Petitioner,

v.

P.F. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent,

and

UNITED STATES OF AMERICA,

Intervenor-Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL RIGHT TO WORK LEGAL

DEFENSE FOUNDATION, INC.

IN SUPPORT OF RESPONDENTS

Bruce N. Cameron

National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road

Springfield, VA 22160

(703) 321-8510

Counsel of Record for Amicus Curiae

National Right to Work Legal Defense

Foundation, Inc. |

TABLE OF CONTENTS

Page

py Pe Sieh ely). ii

INTEREST OF THE AMICUS CURIAE ............... l

SUMMARY OF THE ARGUMENT .................. 3

SE Gwe CR ans Ci eeiwes ese TO ae 5

THE SMITH RULE SHOULD BE ABANDONED

IN FAVOR OF THE LONG-ESTABLISHED

COMPELLING STATE INTEREST RULE ......... 5

I. Congressional Interpretation Of The First

Amendment Is A Basis For Reconsidering

RE ye ane Pee ee 5

Il. The Court Should Reconsider Smith Because

The “Preferred” First Amendment Right To

Freely Exercise Religious Beliefs Is Given

ef PP Te ee eee eee 6

III. The Compelling Interest Test Has “Roots,”

fee eau givg ya Tk Pew aw ts 63 8

ee Re rer a er a eee 14

Fe nn

-ii-

TABLE OF AUTHORITIES

Cases Page

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) 2

Adarand Constructors v. Pena, U:S.

135 §. Co QO97 C1908) 6. ec eee eee 5

Barnes v. Glen Theatre, 501 U.S. 560 (1991) ......... 7,8

Booth v. Maryland, 482 U.S. 496 (1987) .............. 14

Bowen v. Roy, 476 U.S. 693 (1986) .............. 12

Cantwell v. Connecticut, 310 U.S. 296 (1940) ..... 9,10, 11

Chicago Teachers Union, Local No. 1 v.

Fiasdison, 473 43.5. 20a (IFO): 6 ics oe ea deine i

Church of Lukumi Babalu Aye v. City of Hialeah,

SOR U.S. SECIS ins oka eve ee ee ea 3

Communications Workers of America v. Beck,

O67 1.5. 755: (U9GS). 3. ee ee eee 2

Continental T.V. v. GTE Sylvania,

433 U.S: FOES T ie os ccs os or eee eee eee 5, 14

EEOC v. University of Detroit, 904 F.2d 331

(Gti Cir. TORE ck hos Crea ie ee 2

Ellis v. Railway Clerks, 466 U.S. 435 (1984) ............ 2

Employment Division v. Smith,

SGA. B. Sik GRRE | vin cos boeken ee ee passim

Everson v. Board of Education, 330 U.S. 1 (1947) ...... )

Fullilove v. Klutznick, 448 U.S. 448 (1980)... 0.00.00... 6

-iii-

Cases Page

Grady v. Corbin, 495 U.S. 508 (1990) ..... Pere

Helvering v. Hallock, 309 U.S. 106 ee. ee 2

IAM v. Boeing, 833 F.2d 165 (9th Cir. 1987),

cert. denied, 485 U.S. 1014 (1988) __.... 2

Kesler v. Department of Public Safety,

369 U.S. 153 (1962) ............ hr Pl ae

Lebron v. National R.R. Passenger C. Orp.,

513 U.S. 374 (1995) ........ se ge: eee aE

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 ts ) i

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).... 5

Monell v. New York City Dep't of Social Services,

oo AS So RS ee

Monroe v. Pape, 365 U.S. 167 EP er eee “

Murdock v. Pennsylvania, 319 U.S. 105 i ee Ae

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ............ 1]

O'Callahan v. Parker, 395 U.S. 258 Sr 14

Payne v. Tennessee, 501 U.S. 808 | aS . 14

Pierce v. Society of Sisters, 268 U.S. 510 tv: 10

Prince v. Massachusetts, 321 U.S. 158 Rr erie

Quackenbush y. Allstate Insurance, oom! Oe

eR MREE CO ce ee

Romer v. Evans, US. __, 116 S. Ct. 1620 (1996) ..... 8

-jv-

Cases Page

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

Solorio v. United States, 483 U.S. 435 (1987) ......... 14

South Carolina v. Gathers, 490 U.S. 805 (1989) ........ 14

Swanner v. Anchorage Equal Rights Commission,

Ss Gp et Be a eee 9

Swift & Co. v. Wickham, 382 U.S. 111 (1965) ......... 14

United States v. Arnold Schwinn & Co.,

y gtk Me Tt. 7, enna i aan 5,14

United States v. Dixon, 509 U.S. 688 (1993). ..... 9, 14

West Virginia Ba. of Educ. v. Barnette,

Ee ae Ge a ov oink beet ba ade 10, 41,43

Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990),

cert. denied, 500 U.S. 1218 (1992) .................. 2

Wisconsin v. Yoder, 406 U.S. 205 (1972) ........ 9,11, 15

Wooley v. Maynard, 430 U.S. 705 (1977) .............. 6

austienttonsl Dravid 5 |

SA SA I TS Se cbs ob eae ad ds ss Se ee ss passim

ob Re IE i eC re ee 6

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

5 PPC OE ED AGh i. 5 awe hes me Seda eeess 6

Rules of the United States Supreme Court,

WY & Ore eg eee Fre arse |. a Sere l

Other Authorities Page

LEO PFEFFER, CHURCH STATE AND FREEDOM (1967) . 9

Virginia Statute for Establishing Religious

Freedom (1786)........ ANS 4 OR, ES

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF BOERNE, TEXAS,

Petitioner,

Vv.

P.F. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent,

and

UNITED STATES OF AMERICA,

Intervenor-Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

This brief for the National Right to Work Legal Defense

Foundation (“Foundation”) is filed pursuant to Rule 37.3 with the

written consent of all parties. The brief supports the position of

the respondents.

INTEREST OF THE AMICUS CURIAE

The Foundation is a nonprofit, charitable organization that

provides free legai assistance to individual employees who, as a

consequence of compulsory unionism, have suffered violations of

their right to work; their freedoms of association, speech, and

religion; their nights to due process of law; and other fundamental

liberties and rights guaranteed by the Constitution and laws of the

United States and of the several states.

x3

The Foundation has provided the attorneys and the funding

for a long string of victories before this Court vindicating the

statutory and constitutional rights of employees to be free from

being forced to choose between their jobs and the compelled

support of the political activities of labor unions. See, e.g.,

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991);

Communications Workers of America v. Beck, 487 U.S. 735

(1988); Chicago Teachers Union, Local No. 1 v. Hudson, 475

U.S. 292 (1986); Ellis v. Railway Clerks, 466 U.S. 435 (1984);

and Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).

The Foundation not only helps employees to protect their

political beliefs from infringement through compulsory unionism,

it also assists employees whose religious beliefs are violated

through compulsory unionism. See, e.g., Wilson v. NLRB, 920

F.2d 1282 (6th Cir. 1990), cert. denied, 500 U.S. 1218 (1992);

EEOC v. University of Detroit, 904 F.2d 331 (6th Cir. 1990);

IAM v. Boeing, 833 F.2d 165 (9th Cir. 1987), cert. denied, 485

U.S. 1014 (1988).

In hundreds of other cases throughout the country, the

Foundation is now aiding employees who seek to limit their

forced association with unions and their financial payments to

those unions.

Amicus National Right to Work Legal Defense Foundation

believes that the decision of the U.S. Court of Appeals for the

Fifth Circuit was correct. However, amicus will not analyze this

case on the basis used by the Court of Appeals or any of the

parties. Instead, amicus argues that the Religious Freedom

Restoration Act is constitutional because Employment Division

v. Smith, 494 U.S. 872 (1990) was wrongly decided. If this

Court revisits Smith, and reinstates the rule that existed before

West Virginia Board of Education v. Barnette, 319 U.S. 624

s,

(1943), the separation of powers arguments leveled by the

Petitioner fail.'

SUMMARY OF THE ARGUMENT

The interests of the government in preserving the aesthetics

of religion (“beautiful, stone church,” Pet. brf. at 2) are pitted in

this case against the substantive interests of church members in

worshiping God. In Exodus, chapter 32, the Bible records the

well-known story of God’s people creating a golden calf to

worship while Moses was on the mountain receiving the Ten

Commandments. Upon Moses return, a serious discussion over

the substantive aspects of worship ensued with the result that the

golden calf was destroyed. Exodus 32:20. Had this occurred

within the City of Boerne, Ordinance 91-05, proclaiming the

City’s cultural interest in preserving “architectural, archeological,

cultural, social, economic, ethnic and political history” (Cert. Pet.

App. 47a), might have transformed the golden calf into a

permanent impediment to true worship.

In Church of Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520, 559 (1993), Justice Souter stated in his concurring

Opinion, “in a case presenting the issue [of the proper rule to

apply in a Free Exercise claim], the Court should reexamine the

rule Smith [Employment Division v. Smith, 494 U.S. 872 (1990)]

declared.”

This is that case. The rule presently applied to Free Exercise

claims substitutes “neutrality” and “general applicability” for a

critical weighing of the interests of the state against the impact

upon individual worship. At present, the most mundane govern-

mental interests, if neutral, can trump the most central rights of

religious worship.

' Amicus does not suggest that Petitioner’s separation of powers argument

should otherwise prevail or that Smith must be reversed for respondents to

prevail.

-4-

The Court below based its decision (as it must) on the

assumption that the Smith test controlled. This Court, however,

can affirm on a different ground than that considered by the lower

court. Quackenbush v. Allstate Insurance, _U.S.__, 116S.

Ct. 1712, 1718 (1996). Although amicus realizes that in the

“Questions Presented,” Petitioner did not include whether the

Smith rule should be revisited, it explicitly referred to the

“criticism [of that rule] by members of this Court ... as well as

others” (Cert. Pet., p. i) and raised whether Congress could

impose “federal policy to accommodate religious exercise more

than the Constitution requires.” (Jd, p. ii) On that basis, amicus

believes that what the “Constitution requires” is fairly embraced

in the questions before this Court. See, Lebron v. National

R.R.Passenger Corp., 513 U.S. 374, 115 S. Ct. 961, 965-66

(1995).

This Court should reconsider and reverse Smith for three

reasons. First, when a legal rule is in transition, this Court has

acknowledged that it takes seriously the opinions of law profes-

sors and students. If this Court lends an ear to law students, how

much more it should listen to Congress, a co-equal branch of

government. Congress has spoken, and it believes Smith was

wrongly decided.

Second, the Smith rule applies a completely different

standard to the analysis of Free Exercise claims than is applied to

any other First Amendment claim. This Court would not allow

Congress to pass a law which said that religious claims are given

separate and inferior treatment. Such a law would not even pass

the Smith test. If the courts would not allow Congress to create

such a rule, this Court should not permit such a situation to

continue to exist in its own decisions.

Third, the Smith rule has no “roots.” The compelling interest

standard, on the other hand, can trace its roots back 200 years.

The compelling interest standard has such deep “roots” because

it more ably draws the line between government regulation and

individual religious freedom. The compelling interest standard

-5-

examines the relative interests of the state and the believer and

looks at the damage to religious freedom. It does not limit courts

to a superficial examination of whether the state specifically

targeted religion. It would not, for example, permit the govern-

ment’s interest in the aesthetic results of religion override the

substance of religious worship.

If this Court reconsiders and reverses Smith, then Congress

and the Court agree and the separation of powers issue evapo-

rates.

ARGUMENT

THE SMITH RULE SHOULD BE ABANDONED IN

FAVOR OF THE LONG-ESTABLISHED COMPELLING

STATE INTEREST RULE.

I. Congressional Interpretation Of The First Amendment

Is A Basis For Reconsidering Smith.

When this Court reversed the rule announced in United

States v. Arnold Schwinn & Co., 388 U.S. 365 (1967) ten years

later in Continental T.V. v. GTE Sylvania, 433 U. S. 36 (1977),

it prominently cited “the great weight of scholarly opinion [that]

has been critical of the decision....” Continental T.V. 433 U.S. at

48-49. When reversing Metro Broadcasting, Inc. v. FCC, 497

U.S. 547 (1990) and correcting years of vacillation on the

appropriate standard, this Court in Adarand Constructors v.

Pena, _ _US.___, 115 S. Ct. 2097 (1995) said, “We also note

that Metro Broadcasting’s application of different standards of

review to federal and state racial classifications has been consis-

tently criticized by commentators.” Adarand, 115 S. Ct. at 2115.

If the views of law professors and law students are relevant

to whether a matter has been wrongly decided, how much more

pertinent is the opinion of Congress, a co-equal branch of

-6-

government! As this Court recalled in Fullilove v. Klutznick, 448

U.S. 448, 472-73 (1980):

[W]e are bound to approach our task [of passing on the

Constitutionality of an act of Congress] with appropri-

ate deference to the Congress, a co-equal branch

charged by the Constitution with the power to ‘provide

for the... general Welfare of the United States’ and ‘to

enforce, by appropnate legislation,’ the equal protection

guarantees of the Fourteenth Amendment. Art. I, § 8,

cl. 1; Amdt. 14, § 5. ...

Here we pass, not on a choice made by a single judge or

a school board, but on a considered decision of the

Congress and the President.

The Petitioner argues that congressional disagreement with

the Smith rule demonstrates that Congress has overstepped its

authority under section 5 of the fourteenth amendment. Leaving

to the parties the argument on the question of the scope of

congressional authority under section 5, congressional passage of

the Religious Freedom Restoration Act (42 U.S.C. § 2000bb er

seg.) unambiguously shows that, at a minimum, a co-equal branch

of the government believes that the majority of this Court was

wrong in Smith. This alone should cause this Court to reconsider

the Smith rule.

Il. The Court Should Reconsider Smith Because The

“Preferred” First Amendment Right To Freely Exercise

Religious Beliefs Is Given “Second Class” Status.

In Smith, a bare majority of the Court decided that the

universal test for evaluating First Amendment rights should no

longer be applied to the First Amendment right of Free Exercise

of religion. Instead of applying the compelling interest test which

protects the First Amendment nights of speech, press, assembly

and petition, see, e.g., Wooley v. Maynard, 430 U.S. 705, 716

(1977), the Court held any “neutral law of general applicability”

ee eS ee eS

Te

that violates an individual’s religious beliefs is constitutional,

Smith, 494 U.S. at 879, no matter how serious (or central) the

infringement upon the individual’s religious belief. /d. at 886-87.

All of the rights under the First Amendment are “preferred”

and none are entitled to a higher place than the others. Prince v.

Massachusetts, 321 U.S. 158, 164 (1944); see, Murdock v.

Pennsylvania, 319 U.S. 105, 115 (1943). As a practical matter,

Smith set aside the First Amendment right of Free Exercise of

religion and gave it “second class” status to the other First

Amendment rights. As Smith acknowledged, there are only two

situations in which the compelling interest standard is applied to

Free Exercise claims: when the Free Exercise claim is teamed

with other (apparently more worthy) First Amendment claims,

Smith, 494 U.S. at 881, or when the object of the statute is to

prohibit the exercise of religion. /d. at 878.

By applying the “neutral” and “generally applicable” test

instead of the “compelling interest” test, Smith tore the Free

Exercise clause from the pantheon of First Amendment rights and

at best demoted it to the status of a “suspect classification” under

the equal protection clause.’

This stark contrast between the way in which religion is

treated and the way in which free speech is treated is shown by a

comparison between the majority opinion in Smith and the

decision of the Court in Barnes v. Glen Theatre, 501 U.S. 560

(1991). In Barnes, the Court applied its longstanding First

Amendment rule that freedom of expression can only be re-

pressed based upon a “compelling interest.” /d. at 567.

? The argument of the majority in Smith that applying the compelling

interest test to Free Exercise claims creates “a constitutional anomaly” - “a

private right to ignore generally applicable laws” (Jd. at 886) is completely

unfounded. Every challenge to a statute based on Free Speech or Free Press

claims asks that a governmental requirement not be applied to the

challenger. Thus these claims also request “a private right to ignore

generally applicable laws.” Jd.

-8-

In contrast, Justice Scalia, the author of the opinion in Smith,

concurred in Barnes on the basis that the Indiana statute at issue

was a “a general law regulating conduct and not specifically

directed at expression, [therefore] it is not subject to

First-Amendment scrutiny at all.” Barnes, 501 U.S. at 572. This

is precisely the test adopted by the Court in Smith to evaluate

Free Exercise of religion claims, yet the rest of the Court in

Barnes applied a much different test in this free speech case.

This demonstrates two things. First, the author of Smith

believes that the test adopted in that case should be applied to

other First Amendment freedoms. Thus, the application of the

Smith test does not turn upon anything intrinsic to the Free

Exercise clause. Second, it demonstrates that the rest of the

Court does not believe that the Smith test should be applied to

other First Amendment freedoms (or at least free speech).

If Congress voted to give religious objectors, among those

who assert First Amendment claims, “second class” protection

without articulating the reason for different treatment, this Court

would declare that Congress violated the Equal Protection

guarantees. See, e.g., Romer v. Evans, US. ,1168S. Ct.

1620, 1628 (1996). In fact, if Congress passed a law that codified

the Smith rule, such a law would violate the Smith requirement of

“neutrality” and “general applicability.” For this Court to

continue in a fashion denied to the other branches of government

by the Constitution is untenable.

If. The Compelling Interest Test Has “Roots,” Smith Does

Not. |

Justice Frankfurter, in Helvering v. Hallock, 309 U.S. 106,

119 (1940) admonished that:

[S]tare decisis is a principle of policy and not a mechan-

ical formula of adherence to the latest decision, however

recent and questionable, when such adherence involves

-9-

collision with a prior doctrine more cinbr2cing in its

scope, intrinsically sounder, and verified by experience.

In other words, if a rule collides with earlier, better devel-

oped doctrine, it has no “roots.” United States v. Dixon,

509 U.S. 688, 704 (1993).

That is precisely the problem with Smith. As Justice Thomas

noted in his dissent to the denial of certiorari in Swanner v.

Anchorage Equal Rights Commission, US. __, 115 S. Ct.

460, 460 n.1 (1994), Smith “supplanted the compelling interest

test in Free Exercise Clause jurisprudence.”

The supplanted compelling state interest test, which Justice

Thomas called the “Sherbert-Yoder” test, had been around at

least since the dates of those decisions. Sherbert v. Verner, 374

U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972)

In truth, the compelling interest test has roots that extend

back 200 years, not just 30 years. The Virginia Statute for

Establishing Religious Freedom was adopted in 1786. LEO

PFEFFER, CHURCH STATE AND FREEDOM 113 (1967). That statute

provided that when it came to religious opinion, “it is time

enough for the rightful purposes of civil government, for its

officers to interfere when principles break out into overt acts

against peace and good order.” Jd at 114. Justice Rutledge, in his

dissent in Everson v. Board of Education, 330 U.S. 1, 32 n.9

(1947) opined that the Virginia Statute was “[p]ossibly the first

official declaration of the ‘clear and present’ danger doctrine.”

The clear and present danger standard, or variations on it,

was used by this Court in testing Free Exercise claims. In

Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), the Court

evaluated Cantwell’s religious proselytizing by saying “the

petitioner’s communication, considered in the light of the

-10-

constitutional guarantees, raised no such clear and present

menace to public peace and order....” Jd. at 311.’

Later, in West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943), this Court specifically rejected the lower

“rational basis” standard for the evaluation of Free Exercise

claims. Instead, it determined that freedom “of worship” is

“susceptible of restriction only to prevent grave and immediate

danger to interests which the state may lawfully protect.” /d. at

639."

Barnette is a particularly important case for it showcases

Smith's historical problem. While the majority in Barnette

adopted a standard that was at least the equivalent of the

compelling interest test, the dissent of Justice Frankfurter argued

for the Smith standard. Frankfurter wrote:

If the avowed or intrinsic legislative purpose is either to

promote or to discourage some religious community or

creed, it ... cannot stand. But it by no means follows

that legislative power is wanting whenever a general

non-discriminatory civil regulation in fact touches

> Amicus notes, however, that the Court earlier referred to “general and

non-discriminatory legislation” to regulate street solicitation permits.

* Even earlier, in Pierce v. Society of the Sisters, 268 U.S. 510, 535

(1925), the Court reviewed a statute which “[e]vidently was expected to have

general application” requiring public school attendance for children between

the ages of 8 and 16 years. Despite the general applicability of this statute,

the statute was claimed to be unconstitutional because it interfered with the

rights of parents to chose a Roman Catholic education for their children. Jd

at 532. Despite the general applicability of this statute, the Court struck

down this violation of religious “liberty” on the basis that the legislation

failed to have a reasonable relationship to a legitimate state purpose. /d. at

534-35. Failing to find even a reasonable basis for this generally applicable

legislation, the Court was not called upon to test it against the higher

compelling interest test.

-11-

conscientious scruples or religious beliefs of an individ-

ual or a group.

Barnette, 319 U.S. at 651.°

Justice Frankfurter was right that the West Virginia pledge

requirement was a generally applicable and neutral requirement.

What is more, the Board in Barnette had even highlighted its

intent to create a neutral, generally applicable rule in the introduc-

tion to the rule itself. Jd. at 626, n.2. (“conscientious scruples

have not in course of the long struggle for religious toleration

relieved the individual from obedience to the general law not

aimed at the promotion or restriction of the religious beliefs.”

Thus, as early as 1943 the Smith test had been specifically

rejected by the majority of the Court.

The “clear and present danger,” “grave and immediate

danger” test was simply a more colorful way of Stating the

Sherbert-Yoder “compelling interest” test. Sherbert cited

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) as its source for the

compelling state interest test. Sherbert, 374 U.S. at 403. Button

had cited Cantwell (among others) in its overview of the cases

which set the constitutional parameters by which the issues in that

case were to be judged. Button, 371 U.S. at 433. Cantwell, as

shown above, recited the “clear and present danger” standard.

310 U.S. at 311. Thus, a 200 year-old line of precedent can be

* In Murdock v. Pennsylvania, 319 U.S. 105 (1943), the Court also

specifically rejected the “generally applicable” test. In that case, the City of

Jeanette had a forty-year-old ordinance requiring door to door salesmen to

purchase a license to sell their wares. The Court held that this generally

applicable, nondiscriminatory ordinance was unconstitutional when applied

to those “selling” religious tracts as part of their practice of religion. “The

fact that the ordinance is ‘nondiscriminatory’ is immaterial. The protection

afforded by the First Amendment is noi so restricted. ... [E]}quality in

treatment does not save the ordinance. Freedom of press, freedom of speech,

freedom of religion are in a preferred position.” /d. at 115.

-12-

drawn dating from the Virginia Statute for Establishing Religious

Freedom in 1786 to Yoder in 1972.

Although this Court has not always clearly and uniformly

applied the compelling interest test to Free Exercise claims, this

was not so much because the Court was inartfully applying the

“neutral” and “generally applicable” standard. Rather, the failure

to clearly apply the compelling interest standard arose more from

the distinctions based upon compulsion. If government com-

pelled religiously proscribed behavior or punished religiously

prescribed behavior through uniform and generally applicable

laws, the compelling state interest standard applied. Consider

what this Court wrote in Bowen v. Roy, 476 U.S. 693, 706

(1986):

We conclude then that government regulation that

indirectly and incidentally calls for a choice between

securing a governmental benefit and adherence to

religious beliefs is wholly different from governmental

action or legislation that criminalizes religiously inspired

activity or inescapably compels conduct that some find

objectionable for religious reasons. Although the denial

of government benefits over religious objection can

raise serious Free Exercise problems, these two very

different forms of government action are not governed

by the same constitutional standard.

When the City of Boerne denied the Archbishop the right to

expand the St. Peter Church, it denied church members the right

to worship together and therefore seriously interfered with their

right of worship. This government interference with the funda-

mental right to meet together for religious services would

historically have been tested by the compelling state interest

standard.

It should be tested by that standard again.

2%

A substantial motive behind the Smith rule appears to be the

concern over the proliferation of religious beliefs. Smith, 494

U.S. at 888. (“Any society adopting such a system would be

courting anarchy, but that danger increases in direct proportion

to the society’s diversity of religious beliefs, and its determination

to coerce or suppress none of them.”) Leaving to one side the

fact that religious anarchy has not yet broken out despite the

longstanding application of the “clear and present danger/

compelling interest” standard, the concern that accommodating

religion might pinch is no excuse for drastically limiting that ght.

To the contrary, that is the very reason for the Free Exercise

clause. Speaking of the religious right to refrain from pledging

allegiance to the flag, Justice Jackson wrote:

When they [religious beliefs] are so harmless to others

or to the State as those we deal with here, the price is

not too great. But freedom to differ is not limited to

things that do not matter much. That would be a mere

shadow of freedom. The test of its substance is the right

to differ as to things that touch the heart of the existing

order.

Barnette, 319 U.S. at 642 (emphasis added).

It is not too great a stretch to say that the “neutral” and

“generally applicable” rule looks much like a test of the “delivery

system” for governmental action. As an example, unless the

government specifically targets religion, the courts close their

eyes to the reason for the action and the impact of that action on

the religious beliefs of citizens. Only when the “product” is

“delivered” to believers alone, or not delivered to everyone, does

the Court look further at what is going on. From time to time the

press reports on a deranged shooter who randomly machine-guns

all of the unlucky victims who cross his path. The shooting is

neutral and generally applicable in that the shooter is not con-

sciously targeting any specific type of victim. The harm inflicted,

however, is extreme.

-14-

Instead of looking at the scope of victims covered, the

government should return to looking at the extent of the harm

caused by the government so that a lethal approach to the most

sacred religious beliefs of its citizens can be avoided.

This Court’s past practice permits overruling Smith and

reinstating the historic compelling interest standard so that Free

Exercise rights will once again stand equal to the other First

Amendment rights. In United States v. Dixon, 509 U.S. 688

(1993), the Court overruled its recent decision in Grady v.

Corbin, 495 U.S. 508 (1990). In Solorio v. United States, 483

U.S. 435 (1987), the Court overruled the less than ten-year-old

decision in O'Callahan v. Parker, 395 U.S. 258 (1969). In

Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977),

the Court overruled the ten-year-old decision in United States v.

Arnold, Schwinn & Co., 388 U.S. 365 (1967). In Payne v.

Tennessee, 501 U.S. 808, 830 (1991) the Court overruled Booth

v. Maryland, 482 U.S. 496 (1987), and South Carolina v.

Gathers, 490 U.S. 805 (1989): decisions that were less than five

years old. Monell v. New York City Dep't of Social Services, 436

U.S. 658, 695-701 (1978) partially overruled Monroe v. Pape,

365 U.S. 167 (1961). Swift & Co. v. Wickham, 382 U.S. 111,

128-29 (1965) overruled the three-year-old Kesler v. Department

of Public Safety, 369 U.S. 153 (1962), to reaffirm “pre-Kesler

precedent.”

i

CONCLUSION

Smith should be revisited and overruled. The Barnette-

Sherbert-Yoder compelling interest test should be reinstated as

the standard by which Free Exercise claims are judged. This will,

once more, allow the Court to consider the relative interests of

the state and the believer.

Respectfully submitted,

Bruce N. Cameron

National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road

Springfield, VA 22160

(703) 321-8510

Counsel of Record

for Amicus Curiae

National Right to Work Legal

Defense Foundation, Inc.

January 10, 1997