# Amicus Curiae Brief — FAIR v. City of San Buenaventura

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1084

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1747%3A3. Public record. Not legal advice.