Amicus Curiae Brief — FAIR v. City of San Buenaventura

DEC 18 1997

No. 97-822

IN THE

Supreme Court of Che United States

October Term, 1997

FAIR; FIRST ASSEMBLY OF GOD OF VENTURA; JAMES

W. WILLIAMS, II:R.H. SMITH FAMILY PARTNERSHIP:

LEAVENS RANCHES; ROBERT TOBIAS; STEPHEN

TOBIAS; J.D. MCGRATH FARMS;:HOWARD AND

HOWARD RANCH; DANIEL CAMPBELL; ITO FARMS;

THE CONTRERAS FAMILY; and HIJI BROS..

Petitioners,

vs.

CITY OF SAN BUENAVENTURA; and the

CITY OF SAN BUENAVENTURA CITY COUNCIL,

Respondents,

ON PETITION FOR WRIT OF CERTIORARI TO THE CALIFORNIA

COURT OF APPEAL SECOND APPELLATE DISTRICT AFTER

DENIAL OF REVIEW By THE CALIFORNIA SUPREME COURT

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF AMICUS CURIAE IN SUPPORT OF PETITIONER

FIRST ASSEMBLY OF GOD OF VENTURA

James A. Hayes, Jr.

Counsel of Record

28202 Cabot Road, Suite 100

Laguna Niguel, CA 92677

(714) 347-7900

John W. Whitehead

Steven H. Aden

THE RUTHERFORD INSTITUTE

1445 E. Rio Road

Charlottesville, VA 22901

(804) 978-3888

Baimar Legal Publishing Services, Washington, D.C., (202) 682-9800

No. 97-822

IN THE

Supreme Court of The United States

October Term, 1997

FAIR; FIRST ASSEMBLY OF GOD OF VENTURA:

JAMES W. WILLIAMS, III; R.H. SMITH FAMILY

PARTNERSHIP; LEAVENS RANCHES; ROBERT

TOBIAS; STEPHEN TOBIAS; J.D. MCGRATH

FARMS;HOWARD AND HOWARD RANCH; DANIEL

CAMPBELL; ITO FARMS; THE CONTRERAS FAMILY;

and HUI BROS.,

Petitioners,

VS.

CITY OF SAN BUENAVENTURA; and the

CITY OF SAN BUENAVENTURA CITY COUNCIL,

Respondents,

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

The Rutherford Institute hereby respectfully moves the

Court for leave to file the following brief amicus curiae in

this case. The consent of counsel for the Petitioners has been

obtained. The consent of counsel for the Respondents has

been requested but refused.

The interest of the Institute in this case arises from its

activity as a non-profit legal services organization

representing individuals in cases nationwide in defense of

civil and religious liberties, including numerous appearances

before this Court.

The Institute is submitting a brief amicus curiae on

‘behalf of one of the petitioners, First Assembly of God of

Ventura (“Church”). The Church is one of thirteen petitioners

in this case, who collectively raise a variety of claims for

il

infringement of their constitutional mghts. The Church,

specifically, argues in the petition that its cause of action,

alleging that Respondents substantially burdened its free

exercise of religion without a compelling interest, should be

reinstated in the state tnal court and heard on the merits. This

argument raises the issue of the viability of the Court's ruling

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

that neutral laws of general applicability that incidentally

burden religious free exercise are constitutional. Because of

the large number of petitioners and issues to address in the

petition, the brief amicus curiae which the Institute seeks leave

to file contains a more complete argument urging the Court to

grant the petition and certify the question of whether Smith

should be reconsidered and overruled. The viability of Smith

as precedent has been strongly called into questions by three

Justices in City of Boerne v. Flores, 117 S.Ct. 2157 (O’Connor,

J.; Souter, J.; and Breyer, J., dissenting).

In light of this issue being raised in the petition and the

strong interest of several members of the Court, the Institute

respectfully requests that its arguments in support of the

Church be heard.

Respectfully submitted,

James A. Hayes, Jr.

Counsel of Record

28202 Cabot Road, Suite 100

Laguna Niguel, CA 92677

(714) 347-7900

John W. Whitehead

Steven H. Aden

THE RUTHERFORD INSTITUTE

1445 E. Rio Road

Charlottesville, VA 22901

(804) 978-3888

December 18, 1997

stints iia,

ili

QUESTION PRESENTED

Whether the use of the compelling interest test in the pre-

Employment Division v. Smith (“Smith”) Free Exercise

decisions of this Court correctly reflected the historical

origins and understanding of the Free Exercise Clause, and

thus the First Assembly of God of Ventura (“Church”)

properly stated a claim against the City of San Buenaventura

(“City”) by alleging that a popularly-enacted measure,

requiring the Church to qualify a ballot initiative and obtain a

majority of the voters of the City to approve the use of its

property to develop a place of worship, substantially burdens

its Free Exercise rights guaranteed by the Fourteenth

‘Amendment to the United States Constitution without a

compelling government interest.

iV

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE... i

CORFE EIEN WERE MOI cicecciiss gine sca csnitlasbadesasdeadustaveaiesatien ill

py 3 Ue ghd 52. i: See me Umeeele tines iv

CE Se AA EE OD erittsninciepessonstiiinininiicatingiccaiatniicben Vv

PAGE: PRI ee ek IIIS eis cnccstiisitbdionsadaseciuniessaccdnbcindeamiabuials l

I. STATEMENT OF AMICUS CURIAE INTEREST

ATED UTR TION, on cmsesiieccivcssnssenstoventveneseccanensintal

Il. RECONSIDERATION OF SMITH IS SQUARELY

RAISED IN THIS CASE BECAUSE THE

CHURCH ALLEGED IN ITS COMPLAINT

THAT MEASURE I SUBSTANTIALLY BUR-

DENED ITS RIGHT TO FREE EXERCISE

WITHOUT A COMPELLING GOVERNMENT

INTEREST, WHICH IS THE PRE-SMITH STAN-

DARD FOR DECIDING FREE EXERCISE

ffl. | THE PRE-SMITH DECISIONS OF THIS COURT

IN FREE EXERCISE CASES EMBODY THE

HISTORICAL UNDERSTANDING THAT RE-

LIGIOUS PRACTICES ARE PROTECTED FROM

THE BURDENSOME EFFECTS OF NEUTRAL

LAWS OF GENERAL APPLICABILITY...................0000+. 6

CRAP vihnsnhosyncesibcennkosseapnaacebbiusssdlaind ean nechesaanelg bia 11

v

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Arkansas Educational Television Comm. v. Forbes,

93 F.3d (8th Cir. 1996), cert. granted (No. 96-779)............00. l

Bob Jones University v. United States

eR Bir cciteckas chisresitdconssekbechosanabeisecaesssseietaouskabiessenis 7

Bowen v. Roy

EMO hic s4scasnccodbacniscnssticladissdadnaorenbibenitesicsate 9,10

Brown v. Socialist Workers ‘74 Campaign Committee

I I ca esiubind 8

Cantwell v. Connecticut

es I ii vol sa ccicdenacskicthicigoachadhntcsesibatuathimonken 7,8,9,10

Church of the Lukumi Babalu Aye v. City of Hialeah

EIN SRN POPE vechds iaicedovsbvncscnachosnnnisensuadinnousuadinbackadioh passim

City of Boerne v. Flores

pera RPO Ly gy 8 Ae ORR _ 1 yea Ren passim

Employment Div. v. Smith

EIR 0 UI Ac cicesnsiscnseidiinbipuepnesbennbdabiomiasipisieketenoinsin passim

Frazee v. Illinois Department of Employment Security

I el a Ss 7,9

Hernandez v. Commissioner

EE I ied seid cacti wiichsiskcisniisehdcaaubin Lev vucensibobibbecescicees 7

Hobbie v. Unemployment Appeals Comm'n

NI ET cis iniccnciclscsisirssssnshensnbhetmsbasempnssbvdatinisebioiecntoas 7,9

Hustler v. Falwell

RINT. suns uicischsticasgapesaowsedenobmeuiacdbaanmaniesaonbans 8

Jimmy Swaggart Ministries v. Board of Equalization

Ey EE OED van vinrcsnsinensidsiennsubadbaveanbatshiegabtstcncaphentiasbowni 7

Lyng v. Northwest Indian Cemetary Protective Ass'n

cr he REELS ALE SOE ROLE ONION ET 10

vi

TABLE OF AUTHORITIES (CONT’D)

Page

FEDERAL CASES (CONT’D)

Minersville School District v. Gobitis

I a a a ok 8,10

NAACP vy. Alabama

cog RE eRe EAN mee TE OT tS Nee ea x

O’Lone v. Estate of Shabazz

i ee ee £8 1 AN a He ie LOR a ee REPRE tT y 10

Reynolds v. United States

Oe re ea) a eh ee cg aa ea ita 9,10

Sherbert v. Verner

eR SR S| SRE Saree yee was eee ESOP 7,10

Thomas v. Review Board

A a Ne 7,10

United States v. Lee

a) a a eS 7,10

West Virginia Board of Education v. Barnette

BY 8 REI eck PAS DORAN COIR Kara gD 5,8

Yoder v. Wisconsin

acc be Ng ef 0 | TERETE ee 5 Po eA OL 7,9,10

CONSTITUTIONS

i FRCS ERENT RSTO SEE passim

es nt: I: ON i a ee ill

FEDERAL STATUTES

Religious Freedom Restoration Act,

eee Ae ME I ti ihcisda hits ersacscclndbicviasiedeckessinssnsess 3

Vii

TABLE OF AUTHORITIES (CONT’D)

Page

MISCELLANEOUS AUTHORITY

Philip A. Hamburger, A Constitutional Right of

Religious Exemption: An Historical Perspective, 60

COD, FEET: Bis FO Se Ce hikes tas cacicntmeadan seks tcedees 7

Douglas Laycock, The Supreme Court's Assault on

Free Exercise, and the Amicus Brief that was Never

FE, Te Fikes Be PE FO U8 Pe ce cniniavisndcpeipeeiesotsite schon 3,6,8

Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

SRO, tay Mc RUE AE NUD scireivs :cacsmenvesiieinchsnbbiapesnkaatinnsouns passim

Michael W. McConnell, Free Exercise Revisionism

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

5 EEAMPA STINE SI RES Oe OME NRE REST IE Ar ABEL VERN, MR ITEY. NSM er 6,10

No. 97-822

IN THE

Supreme Court of Che United States

October Term, 1997

FAIR; FIRST ASSEMBLY OF GOD OF VENTURA; JAMES

W. WILLIAMS, I11I;R.H. SMITH FAMILY PARTNERSHIP;

LEAVENS RANCHES; ROBERT TOBIAS; STEPHEN

TOBIAS; J.D. MCGRATH FARMS;:HOWARD AND

HOWARD RANCH; DANIEL CAMPBELL; ITO FARMS;

THE CONTRERAS FAMILY; and HUI BROS.,

Petitioners,

vs.

CITY OF SAN BUENAVENTURA; and the

CITY OF SAN BUENAVENTURA CITY COUNCIL,

Respondents,

ON PETITION FOR WRIT OF CERTIORARI TO THE CALIFORNIA

CouRT OF APPEAL SECOND APPELLATE DISTRICT AFTER

DENIAL OF REVIEW BY THE CALIFORNIA SUPREME COURT

BRIEF AMICUS CURIAE IN SUPPORT OF PETITIONER

FIRST ASSEMBLY OF GOD OF VENTURA

I. STATEMENT OF AMICUS CURIAE INTEREST

AND INTRODUCTION

The Rutherford Institute is a non-profit organization

established in 1982 and based in Charlottesville, Virginia,

providing legal services nationwide in defense of civil and

religious liberties. The Institute has appeared numerous times

before this Court on such matters, most recently as amicus

curiae to the Archbishop of San Antonio in City of Boerne v.

Flores, ___. U.S. ___, 117 S.Ct. 2157 (1997), and as counsel

of record for Respondent in Arkansas Educational Television

Comm. v. Forbes, No. 96-779. The Institute believes that the

religion issues raised by Petitioners are critical to the

2

fundamental right to free exercise of religion for all

Americans.

Amicus curiae supports one of the petitioners in this

matter, First Assembly of God of Ventura (“Church”), and

expands on the issue raised more generally (due to length

constraints) in Petitioners’ brief that Respondent City of

Buenaventura has substantially burdened the Church’s rights

under the United States and California Constitutions to Free

Exercise of Religion without a compelling government

interest.

This brief urges the Court to take this opportunity to

reconsider its holding in Employment Div. v. Smith, 494 U.S.

872 (1990), that neutral laws of general applicability do not

offend the Free Exercise Clause, and restore the compelling

interest test for deciding Free Exercise cases.

Three Justices have strongly expressed their desire to

reconsider Smith in dissents to the Court’s ruling last term in

City of Boerne v. Flores, 117 S.Ct. at 2185 (Souter, J.,

dissenting); Jd. at 2176 (O’Connor, J., dissenting and joined

in part by Breyer, J.). Justice Souter renewed his call to

reconsider Smith, first raised in his lengthy concurring

opinion in Church of the Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 564 (1993)(Souter, J., concurring in

part and concurring in the judgment). Justice O’Connor, in a

separate dissenting opinion joined by Justice Breyer, further

urged the Court to overturn Smith outright and return to the

compelling interest standard. Boerne, 117 S.Ct. at 2176

(O’Connor, J., dissenting). Justice O’Connor examined in

detail “the early American tradition of religious free exercise

to gain insight into the original understanding of the Free

Exercise Clause . . .” and concluded that “(t]he historical

evidence casts doubt on the Court’s current interpretation of

the Free Exercise Clause.” /d.

All three of the Justices would have directed the parties

in Boerne to rebrief and reargue the case on the viability of

Smith as precedent. The correctness of Smith was at issue in

Boerne in order for the Court to pass on the constitutionality

3

of RFRA’s enforcement of the free exercise right. Jd. at 2186

(Souter, J., dissenting). But the majority did not find it

necessary to reconsider Smith in order to rule that Congress

had exceeded its constitutional powers in enacting the

Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §

2000bb, et seq., to countermand Smith. Jd. at 2172. Thus,

“our free exercise law remains marked by an ‘intolerable

tension’ [cite omitted]. . . .”. Boerne, 117 S.Ct. at 2186

(Souter, J., dissenting).

In Lukumi, Justice Souter observed that the Smith test

should be reexamined “in the next case that would turn on its

application.” Lukumi, 508 U.S. at 564 (1993)(Souter, J.,

concurring in part and concurring in the judgment). Justice

Souter entreated the Court to reexamine Smith because the

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

of formally neutral, generally applicable laws in prior free

exercise cases but did not overrule those cases. Jd. The result

was “a free-exercise jurisprudence in tension with itself.” Jd.

Both Justice Souter’s concurring opinion in Lukumi and

Justice O’Connor’s dissent in Boerne rely on the important

scholarly inquiry since Smith into the roots of free exercise of

religion in this country, most notably Michael W. McConnell,

The Origins and Historical Understanding of Free Exercise of

Religion, 103 Harv. L. Rev. 1409 (1990). 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 of its free exercise precedents persuasive and

upheld the compelling interest test. See Lukumi, 508 U.S. at

574-75 (Souter, J., concurring in part and concurring in the

judgment).

This brief will not restate in detail the analyses and the

many complex arguments in favor of overturning Smith found

in that scholarship on free exercise history. To do so would

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).

4

needlessly repeat the thorough review given those same works

by Justice O’Connor’s dissent in Boerne and Justice Souter’s

concurrence in Lukumi. The Court is commended to the

original scholarship cited for the depth of the arguments

which cannot be recreated in the space permitted here.

Amicus curiae encourages the Court to re-examine Smith now

in the light of this scholarship and overturn its holding. The

history and original understanding of the Free Exercise Clause

demonstrate its purpose to protect religious individuals,

including the use of exemptions. The compelling interest test

effectuates this purpose. This Court’s pre-Smith opinions thus

provide the correct standard for analyzing free exercise cases.

Il. RECONSIDERATION OF SMITH IS SQUARELY

RAISED IN THIS CASE BECAUSE THE CHURCH

ALLEGED IN ITS COMPLAINT THAT MEASURE

I SUBSTANTIALLY BURDENED ITS RIGHT TO

FREE EXERCISE WITHOUT A COMPELLING

GOVERNMENT INTEREST, WHICH IS THE

PRE-SMITH STANDARD FOR DECIDING FREE

EXERCISE DISPUTES

If the Court reconsiders and overrules Smith here, there

will be justiciable issues to be tried on remand of the case to

state trial court. The Church alleged in its complaint that its

free exercise rights under the Constitution were substantially

burdened by Measure I's requirement that it qualify a ballot

initiative and obtain a majority vote of the citizens of Ventura

in order to develop its land for a place of worship and

religious school for its devotees. The state court of appeal

sustained the City’s demurrer to this cause of action on the

ground that “Measure I places no burden on any religious

belief.” App. A-9.

On reinstatement of its complaint with instructions to the

trial court to apply the compelling interest test, the Church

will be able to present evidence that Measure I deprives it of

its ability to serve its churchgoers by forcing it to submit to

the enormous expense and uncertainty of a general popular

| ‘

5

vote with no apparent compelling interest to do so.

Furthermore, by forcing the Church to engage in a political

campaign to use its property, Measure I also imposes on the

Church the intolerable burden of losing its tax-exempt

status, which requires it to refrain from political activity.

Consequently, under Measure I, in order to make use of its

property for religious purposes, the Church must risk its

tax-exempt status by undertaking the financial drain of

seeking the uncertain approval of the general populace in

an election.

Of course, a lesser restrictive means of controlling

growth in Ventura had always existed prior to Measure I.

The City Council was responsible for land-use planning.

Although seeking approval from this body entailed some

uncertainty and expense, Measure I presents a practical and

financial barrier to the Church using its property for the

needs of its growing congregation.

Exempting churches from the whims of the majority in

the political sector was precisely the original understanding

of the Free Exercise Clause, as observed by Justice

O’Connor in Smith:

““The very purpose of a Bill of Rights was to

withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the

reach of majorities and officials and to establish

them as legal principles to be applied by the

courts. One’s right to . . . freedom of

worship and assembly, and other fundamental

rights may not be submitted to vote; they depend

on the outcome of no elections.’”

Smith, 493 U.S. at 903 (O’Connor, J., concurring,

quoting West Virginia State Board of Education v.

Barnette, 319 U.S. 624, 638 (1938).

Therefore, reconsideration of Smith will restore the

compelling interest test and require Respondents to

6

demonstrate on remand a compelling need to subject the

Church to the expense and risk of a general election in order

to use its property to build a place of worship.

Ill. THE PRE-SMITH DECISIONS OF THIS COURT IN

FREE EXERCISE CASES EMBODY THE HISTORI-

CAL UNDERSTANDING THAT RELIGIOUS PRAC-

TICES ARE PROTECTED FROM — THE

BURDENSOME EFFECTS OF NEUTRAL LAWS OF

GENERAL APPLICABILITY

Smith did not overturn pre-Smith precedents. Lukumi, 508

U.S. at 573-74 (Souter, J., concurring in part and concurring in the

judgment). Smith recharacterized the holdings of those cases in

an effort to harmonize them with its reasoning. Michael W.

McConnell, Free Exercise Revisionism and the Smith Decision,

57 U. Chi. L. Rev. 1109, 1120-24 (1990); Douglas Laycock, 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 constitutional rule is

to be followed. Lukwmi, 508 U.S. at 574 (Souter, J., concurring in

part and concurring in the judgment).

There are other important reasons to reconsider Smith. First,

the Smith rule was decided without briefing and oral argument.

Id. at 571-72. 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.

Id. at 572-73. Indeed, Justice O’Connor reached the same result

as the majority by applying the existing free exercise precedents.

Id.

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 original meaning of the Free Exercise Clause. Id.

7

at 574-76. Before Smith, little information existed on the

history of the Free Exercise Clause in either earlier Supreme

Court opinions or in scholarly articles. Legal scholarship

developed after Smith persuasively demonstrates that the pre-

Smith compelling interest test is consistent with the original

understanding that free exercise of religion was to be

protected from the burdensome effects of neutral laws of

general applicability. To be sure, scholarly opinion is not

unanimous on this point. See Boerne, 117 S.Ct. at 2172-76

(Scalia, J., concurring); see also, Philip A. Hamburger, A

Constitutional Right of Religious Exemption: An Historical

Perspective, 60 Geo. Wash. L. Rev. 915 (1992).

Nevertheless, even this disagreement underscores the need for

the Court to consider the pertinent scholarship now if Smith’s

vitality as precedent is to be secure.

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

cases consistently embodied the concept that the Free

Exercise Clause required not only formal neutrality, which

would prohibit only those laws whose object is to

discriminate against religion, but also substantive neutrality,

which would additionally require exempting religious

practices from formally neutral laws. Lukumi, 508 U.S. at

562-66 (Souter, J., concurring in part and concurring in the

judgment). The articulated rule applied in each of those cases

was that a compelling 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); Hernandez 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.

8

296, 304-07 (1940). See also Lukumi, 508 U.S. at 565-

66)(Souter, J., concurring in part and concurring 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 574-75 (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

restriction 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

exceptions 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

movements exempted from facially neutral disclosure laws);

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

defenses for media against facially neutral tort law).

It is apparent that a review of the historical origins of the

Free Exercise Clause provides considerable support for the

compelling interest test which the Court derived from a plain

reading of the text. It certainly undermines 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 on and quoted extensively from Minersville

School District v. Gobitis, 310 U.S. 586 (1940), without

mentioning that this case was essentially overruled in West

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

(1943). Smith, 494 U.S. at 879. The Court also quoted from

9

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). Also cited is 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 elaboration on 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

compelling interest test, rather than support Smith’s rejection

of it. Lukumi, 508 U.S. at 569-70 (Souter, J., concurring in

part and concurring in the judgment).

Smith’s treatment of Cantwell and Yoder, two cases

which unquestionably required exemption of religious

practices from neutral laws of general applicability, is also

problematic. Rather than apply those cases as pure free

exercise precedents, Smith instead recharacterizes 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 distinction, however, is not supported by either the text

or 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);

10

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 883-84, 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

compelling reason.” Id.

But as Professor McConnell has observed:

“Difficulty of administration can fairly constitute at

least part of the government interest in enforcing the

law without exceptions, but it is hard to see why

this concern should limit the universe of potential

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

to see why the compelling interest test does not

apply 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

without a difference, because most free exercise cases

“resemble the unemployment compensation cases in that they

involve individuated governmental assessments of the

claimant’s circumstances.” Id. (citing United States v. Lee,

455 U.S. 252 (1982); Lyng v. Northwest Indian Cemetary

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 compensation cases that involved such

individuated 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 currency (Gobitis, Bowen and Reynolds), and

See ee ae ee eee

11

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

exemption from neutral, generally applicable laws - a reading

which now acquires added texture from the recent legal

scholarship on the historical origins of the Free Exercise

Clause.

CONCLUSION

For all of the foregoing reasons, the Court should grant

the Petition for Writ of Certiorari and certify the question of

whether Smith is the proper legal standard for deciding free

exercise Cases 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,

James A. Hayes, Jr.

Counsel of Record

28202 Cabot Road, Suite 100

Laguna Niguel, CA 92677

(714) 347-7900

John W. Whitehead

Steven H. Aden

THE RUTHERFORD INSTITUTE

1445 E. Rio Road

Charlottesville, VA 22901

(804) 978-3888

December 18, 1997