# Amicus Curiae Brief — City of Boerne v. Flores

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1542%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 507

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1542%3A22. Public record. Not legal advice.