Employment Division v. Smith

Problem is, there's a landmark 1990 precedent written by the late conservative icon Justice Scalia saying that generally applicable rules like Colorado's that happen to burden someone's religion don't violate the free exercise clause.

Now, at the time, the ruling called Employment Division v. Smith was designed to punch that case's hippy-dippy peyote-tripping co-plaintiff's Native American church by rejecting the liberal Warren Court's free exercise precedents from the 1960s that protected members of minority religions.

The facts were almost tailor-made for controversy.

Two members of the Native American church who worked as drug counselors were fired after ingesting peyote as part of a religious ceremony.

Think the anti-affirmative action cases against Harvard and UNC.

But sometimes, the Roberts Court repeatedly rejects requests to outright overrule certain precedents, instead preferring death by a thousand cuts.

Think Employment Division v. Smith and this term St. Mary's Parish case that I rabbit-holed you down a few minutes ago.

The same goes for a case called Bivens v.

It creates an environment where only those who conform to the state's moral framework get the benefit of their own tax dollars.

Acknowledging that fear, however, does not grant an automatic override of civil rights laws, which requires us to examine the precedent set by Employment Division v. Smith and the specific limits the Supreme Court placed on this current review.

Ah, yes.

The Smith decision.

For anyone who isn't a constitutional scholar, Employment Division v. Smith is a monumental case from 1990 authored by Justice Antonin Scalia.

It fundamentally altered religious liberty jurisprudence.

It did.

Shout out to our host city here, which was a very similar case about foster placements by whether a Catholic organization had to allow foster placements placements by gay couples in order to participate in Philadelphia's foster program.

And people expected that the court was going to overrule Employment Division v. Smith and Justice Barrett, who was then newly on the court, was going to be in the lead on that.

But actually what the court did was it did rule against the city of Philadelphia, but it did so on narrow grounds.

And Justice Barrett, joined by Justice Kavanaugh, wrote a concurrence that said, if not Employment Division v. Smith, then what? It's actually really hard.

And really raising questions as to what would replace Employment Division v. Smith.

And so the challengers in this case filed this petition.

One of the questions they raised was whether Employment Division v. Smith should be overruled.

It's been five years.

And as a result, we are committed to our teachings on marriage and gender that contradict the non-discrimination agreement.

And as a result, they say they're being unconstitutionally excluded from a public benefit because of, as a direct result of, their religious convictions and that this is a violation of of the First Amendment, the Tenth Circuit said, nope, it agreed with a lower court ruling and it cited Employment Division v. Smith, a Supreme Court case from 1990, saying that the program and the law and the details of the agreement are generally applicable.

They don't specifically target the preschools in question.

They don't particularly target Catholics.

Yeah, no atheist he... is still on the books.

And the state of Colorado's case that this is consistent with it does seem somewhat strong to me.

So if you're not going to overturn Employment Division v. Smith, isn't St. Mary Catholic Parish going to lose?

I don't think they will lose this particular case.

And St. Mary Catholic Parish, which is in the town of Littleton, Colorado, along with some other Catholic preschools, have said, "Well, we can't comply with those rules as written because we're a Catholic school, and as a result, we are committed to our teachings on marriage and gender that contradict the non-discrimination agreement." And as a result, they say they're being unconstitutionally excluded from a public benefit because of, as a direct result of, their religious convictions, and that this is a violation of the First Amendment.

The Tenth Circuit said nope, and it agreed with a lower court ruling, and it cited Employment Division v. Smith-

Smith

...

They don't specifically target, uh, the preschools in question.

They don't particularly target Catholics.

Now, the Supreme Court agreed to hear this, but it is not, at least thus far, it is not going to look at whether Employment Division v. Smith should be overturned, but at a narrow question, which is how the Supreme Court's precedents in this area should apply when lower courts take up these cases.

So in such cases as a government, state or federal, is excluding religious institutions from public benefit, what is it obliged to do? I don't think that the court really can look at this completely independently of Employment Division v.

... uh, which was a very similar case about foster, uh, placements by, um, whether a Catholic organization had to a- allow foster p- uh, placements by gay couples in order to participate in Philadelphia's foster program.

And people expected that the court was going to overrule Employment Division v. Smith, and Justice Barrett, who was then newly on the court, was going to be in the lead on that.

But actually, what the court did was it did, um, rule against the City of Philadelphia, but it did so on narrow grounds, and Justice Barrett, joined by Justice Kavanaugh, wrote a concurrence that said, "If not Employment Division v. Smith, then what?" It's actually really hard, um, and really raising questions as to what would replace Employment Division v.

Smith.

And so the challengers in this case filed this petition.

One of the questions they raised was whether Employment Division v. Smith should be overruled.

And you know, it's been five years.

Justice Barrett has had more time to think about it.

And in particular, they allege that even though the non-discrimination requirement is categorical on its face, Colorado, in fact, has granted exemptions to schools that serve only particular groups, including families from the LGBTQ community, while refusing similar exemptions to religious schools.

And in a case called Employment Division v. Smith, the Supreme Court held decades ago that a neutral and generally applicable rule need not give way to religious exemptions.

But several justices on the court have criticized the Smith case, and this case will test the application of that principle.

And here the challengers argue that the Smith principle should at least give way where a state has granted exemptions to a law that is generally applicable on its face.

I wanted to have you address the free exercise clause briefly, if you could.

Your argument seems to rely fairly heavily on Employment Division v. Smith, and I was wondering if that case were to be overturned, does your argument falter?

It doesn't, Your Honor, for two reasons.

One is that plaintiffs don't even really dispute that it's neutral and generally applicable, so they forfeited that argument.