Employment Division v. Smith

-Submitted by David Drumm (Nal), Guest Blogger

Since the United States Conference of Catholic Bishops (USCCB) has rejected Obama’s contraception compromise, and since House Speaker John Boehner (R-Ohio) has called the mandate unconstitutional, it’s a good time to look at what the Supreme Court has decided. A critical case is Employment Division v. Smith (1990) in which J. Scalia wrote the opinion for the 6-3 majority. Although there has been a torrent of invective regarding the Smith decision, I find it well-argued and compelling.

The question before the Court in Smith was whether the Free Exercise Clause of the First Amendment could exclude religious use of peyote from criminal prohibition. Although contraception is not illegal, as peyote is, the principles put forth in the Court’s opinion present real problems for those contending the mandate is an unconstitutional encroachment on the Free Exercise Clause.

In Smith the Court notes that when the law is not specifically directed at a particular religion, “the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”

The Court notes the test from Sherbert v. Verner (1963) where “governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest.” In Smith the Court rejects the “compelling interest” test:

To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. at 167 — contradicts both constitutional tradition and common sense.

The contraception debate has raised the issue of “Religious Liberty.” In Smith the Court addresses that issue when a similar argument is raised:

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind …

In Reynolds the Court expressed a similar concept:

To permit [polygamy among members of the Mormon Church] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

“Religious Liberty” does not extend to the case where an employer or insurance company CEO gets to decide what medical procedures are “immoral.” With our diversity of religion, every medical practice, procedure, or regulation is sure to be considered “immoral” and conflict with someone’s religious beliefs. If we water down every statute with religious exemptions, we will be courting anarchy. We are a nation of secular laws, and religious exemptions to those laws need to be few and far between.

The USCCB could try the 1993 Religious Freedom Restoration Act (RFRA), passed in response to the Smith decision, which says that any law that burdens religious freedom must satisfy strict scrutiny. However, in the case of City of Boerne v. Flores (1997), the Court held that the RFRA is an unconstitutional use of Congress’s enforcement powers. Although the opinion applies only to States, the principle may extend its application should the USCCB decide to file suit under the RFRA.

H/T: TPM, Marci A. Hamilton (pdf), Paul E. McGreal.

21 thoughts on “<i>Employment Division v. Smith</i>”

  1. This is a re-post from last night’s Contraception and Separation thread it relates here also.

    IN 2002 the NY Legislature passed the Women’s Health & Wellness Act (WHWA) which (among other services) mandated that employer insurance plans which offer prescriptive drug benefits must include coverage for hormonal contraceptives. Catholic Charities of the Diocese of Albany joined by some Baptist organizations brought suit with the same argument, that the requirement was an infringement on their religious freedom. In 2003 the NY Supreme Court dismissed the compliant upholding the WHWA as constitutional. The divided appellate affirmed the original decision in 2006. Appealing once again, the NY Court of Appeals affirmed the decision and preserved the WHWA as constitutional. The SCOTUS decided not to consider the challenge in 2007.

    See Catholic Charities of the Diocese of Albany et al v. Serio

  2. Gene,

    A mandated use of contraception wouldn’t be a free exercise problem, it would be a Brave New World problem; tyranny per se.

    The secularization occurs by dictating to the church how it will view and abide by a particular canon. (“You will ignore this part of your religion because we say it’s good for you.”)

    What if one of the tenets of Catholicism was that guns are sinful? Do you really think that a mandate forcing Catholic institutions to make guns available to their people wouldn’t be a violation of the free exercise clause?

    No one’s forcing them to use the guns; right?

  3. Bob,

    As much as I love the Python’s humor, I still don’t see how free exercise is impaired without mandated use of contraception.

  4. Bob,
    I also do not see how requiring contraceptives to be freely available is secularizing religion. What about the Catholic hospitals and universities that already include access to contraceptive services to their employees, are they being secularized?

  5. Bob,

    I don’t see how providing access to contraceptives without mandating use steps on anyone’s free exercise.

  6. Much as the pragmatist in me, well aware of the problems of over-population and unwanted pregnancies, wants to see that people who want contraceptives get them, the Smith case does not sufficiently address the problem of Federal mandates stepping on religious freedom.

    “The Constitution of the U. S. forbids everything like an establishment of a national religion. ” — Madison

    To the extent that we strictly adhere to a complete separation between church and state per the establishment of a national religion, the Fed is obliged conversely from secularizing religion by mandate.

  7. If someone can disregard civil law if they think it intrudes on their religious freedom, and that someone wants to impose his religious principles on others, haven’t we effectively instituted “sharia law”?

  8. I don’t see much difference between employees getting money which they can use to obtain contraceptives and employees getting insurance which they can use to obtain contraceptives.

  9. How is an “Originalist” going to view these issues in terms of the First Amendment? Scalia is going to have to acknowlege that there were no rubbers in the time of the Framing of the original text and thence the First Ten Commandments (oops Amendments) by the exalted Framers. How many of the original Framers were Catholic? Any? Was there health insurance then? Was there a rthym method then or indeed blues music? What did the Anglican Church say about contraceptives? If all of the original Framers were Quakers, Anglican Church members (Episcopalian today), or heathens (what was Franklin?), then who the hell should care about the Catholic objections now. Except Scalia is a Catolick so some wiggle room is necessary for the original intent of the Framers.

    Who did the Framers intend to protect? The individual or the religious corportion. Citizens United comes to mind. Perhaps a Church’s rights under the First Amendment get equal play or superior play over the rights of the individual who has not a quarter for a condom.

    So which prong do we hang this argument upon? Justice Scalia, which prong? Is it the free expression prong of the First Amd (I know nuthin about birthin babies), the right of assembly prong (group sex), the right to assemble and exercise free speech to petition the government for redress of grievances (right of Catholic Church to tell its congregation to not vote for that Negro condum advocate and to impose upon its employees the burden of birthin babies).

    Then there is the privileges and immunities clause.

    Then all of the 14th Amendment provisions about liberty, due process of law, citizenship, equality, … Of course Scalia wont give a hoot about the 14th Amendment because the Framers of that Amendment were small f framers and their original intent dont squat for beans. That would be a Reconstructed view. You know, Lincoln and Grant intended to Reconstruct the Nation into a new whole where all of the white trash non- land holders, non slave holders were now equal citizens with the former Aristocracy, and all the freedmen were equal citizens and the original intent of the original Framers was reversed by the 13th, 14th, and 15th Amendments. Of course if this religion thing comes up in a former slave state, like say, Missouri, their judges will be UnReconstructed–even today. And, what would a former assistant attorney general from Missouri, now sitting on the Supreme Court, think about Reconstruction when back in his days in Jefferson City he had a Confederate Flag on the wall as proof that he was just as UnReconstructed as the white guys on board that ship under the reign of John Danforth?

    How would the original Framers feel about a Catholic on the Supreme Court? Boy, for Scalia, this is a tough one.

    Oh, well, a lot going on in the mind of a dog on this topic this morning. All over a pack of rubbers confiscated by a bunch of nuns with rulers in their hands ready to whack your pee pee.

    Just me, a dog talkin. Dont take no heed.

  10. It is terrible that a company can be exempted from obeying laws just because they claim a religious reason to do so.

    If the law requires birth control to be included in insurance than it should be. The fact that it is against the employer’s belief system should have no more bearing than the employer’s belief regarding overtime, minimum wage, handicap accommodation, ability to flog one’s employees or any other law.

    I also belief it is obscene that we allow profit producing companies to avoid paying taxes just because they claim to be a church.

  11. Great article David! If the Republicans are to be believed, they are now claiming that a corporation is able to be a member of a religion. If I understand it correctly, I don’t think Koch Industries has made their First Communion or Confirmation so how can they be a “member” of any church?

  12. Leaving aside the issue of contraception, I think that casual or unintended infringement is not acceptable. Each infringement needs to be acknowledged as the intent of the Legislature to make sure that an appropriate balancing has taken place.

    As an example of a good formulation, although a bad formulation, is the 36 CFR 7.96 where the right to demonstrate in front of the White House is explicitly infringed in order to allow tourists to take bucolic photos, should they wish to.

    To claim that every person may be a “law unto himself” is to say that this is a proper area for legislation. This begs the question. And if this is a so called “time place manner” exception to the First Amendment, is this a time or a place or a manner exception? That whole exception category I find to be too vague.

  13. Maybe the birth control issue should be tie barred with visgra….. they seem to go hand inhand….. I have yet to hear any one complain that this should not be an issue….

  14. I think Justice O’Connors concurrence was very explanatory of the whole case. I think only 2 or 3 Sct Justices of that court are still on the court.

  15. The Smith case was called to my attention by someone a few days ago. After reading it, I began wondering how the right wing of the SCOTUS is going to try and wiggle out of this, especially in view of some past statements regarding stare decisis.

    Scalia in particular is facing a real conundrum if he is inclined to rule in favor of the RC church’s position. However, he is a smart guy and I have the fullest confidence he is capable of some fancy legal gymnastics in the matter.

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