Employment Division v. Smith and the Scalia rule that still splits conservatives

Here is a puzzle for the next conservative dinner party. Name the greatest textualist judge of the twentieth century. Now name the opinion of his that religious conservatives have spent thirty-five years trying to get overruled. If your table answers "Scalia" both times, congratulations: you have found the most awkward fact in the modern religious-liberty debate.

Antonin Scalia was a hero to the movement, and Employment Division v. Smith is his opinion, and it says that a believer has no constitutional right to an exemption from a law that is neutral and applies to everyone. The conservative world has been arguing about whether that is right ever since. This post gives both sides a fair hearing and then tells you where I come down.

The facts: two counselors, one sacrament, one unemployment check

Alfred Smith and Galen Black were drug-rehabilitation counselors in Oregon. Both were members of the Native American Church, and both had taken peyote at a religious ceremony of that church. Their private employer fired them for it. Peyote was a controlled substance under Oregon law, and the employer ran a drug-treatment program that required its counselors to stay drug-free.

They applied for unemployment benefits. Oregon's Employment Division denied the claim, ruling that they had been dismissed for work-related misconduct. The Oregon courts reversed, holding that denying benefits for sacramental use of peyote burdened free exercise under the Supreme Court's precedents. The state petitioned.

Notice what the case was not. Nobody was prosecuted. Nobody went to jail. The question was whether the state could deny a government benefit, unemployment compensation, to a person fired for conduct that was a crime under state law, when the conduct was an act of worship. The Court first sent the case back in 1988 to ask whether Oregon's drug law actually covered religious peyote use; on remand the Oregon Supreme Court said it did, and that the use was nevertheless protected by the First Amendment. In 1990, the case came back.

The holding: neutral and generally applicable

On April 17, 1990, the Court ruled six to three against Smith and Black. Justice Scalia wrote the opinion for a five-Justice majority; Justice O'Connor agreed with the result on different grounds. His holding can be stated in one sentence: the Free Exercise Clause does not require a religious exemption from a neutral law of general applicability that incidentally burdens religion.

His reasoning ran in four steps.

1. The text. The clause bars laws "prohibiting the free exercise" of religion. Scalia read that as forbidding laws aimed at religion, such as a ban on bowing before a statue or on a church service, and not as reaching every law that happens to fall on a believer harder than on his neighbor.
2. The precedent. The Court had never, he said, struck down a generally applicable criminal law on free exercise grounds. Reynolds v. United States (1879) rejected an exemption for polygamy. Prince v. Massachusetts (1944) upheld child labor laws against a Jehovah's Witness guardian. Gillette v. United States (1971) upheld the draft against a claim by a man who objected to a particular war. The unemployment cases, led by Sherbert v. Verner (1963), applied a compelling-interest test only in a narrow area, where the state had a system of individualized exemptions.
3. The "hybrid" theory. Cases like Wisconsin v. Yoder (1972), on Amish schooling, involved free exercise together with another right such as parental rights. Those, the Court said, were a different category.
4. The danger. If every believer could demand an exemption from every law unless the state proved a compelling interest, the result would be, in a phrase borrowed from Reynolds, that each conscience would become "a law unto itself." Scalia added that leaving accommodation to the political process would disadvantage minority faiths, but that was, he said, an unavoidable consequence of democratic government.

That is a serious argument. It is not a stupid one, and it is not a hostile one.

O'Connor and the dissent

Justice Sandra Day O'Connor agreed that Smith lost, but she wrote separately, and she was blunt. She said the majority had abandoned the compelling-interest test for no good reason and had dispensed with a free-exercise doctrine that had stood for decades. Under that test, she would have asked whether the burden was justified by a compelling interest and whether the law was the least restrictive means. She concluded that Oregon had a compelling interest in controlling drugs and that the exemption would endanger it.

Justice Blackmun, joined by Brennan and Marshall, dissented. They thought Oregon had not shown that an exemption for sacramental peyote would hurt anything. The federal government and many states already exempted the Native American Church. The dissent made a point that stuck: the state's claimed interest was hard to take seriously when the exemption had been granted elsewhere with no apparent harm.

What happened next

The reaction was swift and unusual. A wide coalition, from the American Civil Liberties Union to the Christian Legal Society, backed the Religious Freedom Restoration Act, and Senator Ted Kennedy introduced the Senate bill. Congress passed it and President Clinton signed it on November 16, 1993. RFRA restored the compelling-interest test by statute for federal law and, as passed, for the states as well. In City of Boerne v. Flores in 1997 the Court held that Congress lacked power to impose RFRA on the states under Section 5 of the Fourteenth Amendment, though it stands against the federal government. Many states then passed their own versions, a subject covered in What a state RFRA does and does not do, in twelve plain questions. Congress also amended the American Indian Religious Freedom Act in 1994 to protect the sacramental use of peyote by members of Native American tribes in traditional ceremonies, the exact fact pattern that started it all.

That history matters to the argument. The legislative branch responded to Smith by giving believers the very thing the Court had said the political process might give them. The Scalia theory predicted a world where accommodation was left to legislatures. That world arrived. The question is whether it arrived well enough.

The first conservative position: Smith was right

Let me state the best case for Scalia, in terms his defenders would accept.

The first argument is democratic. A court that grants exemptions from every statute is rewriting the statute, picking winners and losers case by case. Who decides whether a particular practice is sincere? Who decides whether the burden is substantial? Who decides whether the government's interest is compelling? Judges, with no standard besides their own values. Scalia's rule moves that job back to the people's representatives, where it belongs. Exemptions in the peyote case came from Congress, from state legislatures, from the elected branches, which is the right place for them.

The second argument is equality under law. The rule of law means one law for everyone. A system where the law bends for those who can claim a religious motive is a system with different laws for different consciences. Scalia worried that exemptions invite sorting people by the sincerity of belief, a judgment courts handle badly and ought not to make.

The third argument is text and original meaning. The clause protects the "free exercise of religion." A law that applies to everyone is not a law "prohibiting" a religious exercise; it is a law prohibiting an act, which sometimes is also a religious act. At least some of the evidence about the Founders' own view fits that reading: many early state constitutions included proviso language limiting free exercise to conduct that did not disturb the peace or safety of the state.

The fourth argument is institutional humility. Strict scrutiny applied to every burden would make the courts a general-purpose referee for the whole body of regulation. The number of claims would be enormous. Smith's rule keeps that dock clear.

I give that case full weight. It is the argument of a man who loved the rule of law and who distrusted judges with discretion. In an age of judicial overreach that is not a small virtue.

The second conservative position: Smith was wrong

Now the other side, stated as its defenders would state it.

The first argument is history. Michael McConnell, a distinguished scholar who later served as a federal appeals judge, wrote a much-cited article in 1990 arguing that the Founding generation understood free exercise to include a right to exemptions from general laws, with limits where the state's survival or public peace was at stake. Under that view the original understanding, the practice of early legislatures, and the writings of Madison and Jefferson all supported accommodation. Others, including Philip Hamburger, answered that the evidence is thinner, and that the early record suggests free exercise meant freedom from laws that targeted religion, rather than a right to an exemption. That is a live scholarly dispute. Both sides cite original sources. A fair person notes that the historians are divided.

The second argument is text. The clause says Congress shall not make a law "prohibiting the free exercise" of religion. A believer who must violate the law to practice his faith has had his exercise prohibited, no matter how neutral the law was in its drafting. The effect on the believer is the same. It is a prohibition of exercise, and the text does not say "unless the prohibition is incidental."

The third argument is practical protection. Neutral laws are written by majorities, and majorities rarely think about minority sacraments when they write a statute. A drug law written without peyote in mind has the same effect on the Native American Church as a ban aimed at it. The Amish, the Orthodox Jew who needs to keep the Sabbath, the Sikh with a kirpan, the Catholic with a conscience claim: each leaves the ordinary legislative process invisible. Exemptions are how a free society corrects its blind spots.

The fourth argument is the constitutional ranking. Free exercise is in the Bill of Rights. When we give a right in the Bill of Rights a weaker test than we give a right to property in some contexts, or a weaker test than speech, we have turned the priorities of the Founders upside down. Speech gets strict scrutiny for content-based laws. Religion, the first freedom named, gets a rational-basis check unless the state targets it. That, the critics say, cannot be right.

That is also a serious argument, and I think it carries real weight.

Fulton and the Alito and Barrett concurrences

The fight is not academic. It came to the Court again in Fulton v. City of Philadelphia, decided June 17, 2021. Philadelphia had stopped referring foster children to Catholic Social Services because the agency would not certify same-sex couples as foster parents. The agency sued. The Court held, nine to zero, that the city's action violated the Free Exercise Clause. Chief Justice Roberts wrote the opinion, and he decided the case on a narrow ground: the city's contract allowed the Commissioner to grant exceptions at his discretion, so the policy was not "generally applicable," and Smith's rule did not govern. The Court declined to overrule Smith.

Three concurrences showed the split.

• Justice Alito, joined by Justices Thomas and Gorsuch, wrote a long concurrence arguing that Smith should be overruled and that the Court had ducked the question. He said the decision would likely lead to endless litigation over what counts as "general applicability."
• Justice Gorsuch, joined by Thomas and Alito, wrote separately to say the same and to criticize the Court's reasoning.
• Justice Barrett, joined by Justice Kavanaugh, and in part by Justice Breyer, said she doubted Smith was right as a matter of text and history, but that she would not overrule it without knowing what should replace it. Should courts apply strict scrutiny to every religious burden? Should some religious claims get categorical protection? Should the rule differ for different kinds of laws? She noted the difficulty and the scholars' disagreement and said she would wait for a fuller picture.

The result is that the Court has, since 2021, been steadily narrowing Smith from the other direction. In Tandon v. Newsom in 2021 it held that a law is not neutral and generally applicable whenever the government treats any comparable secular activity more favorably than religious exercise, a rule explained in casinos open, churches capped, and the pandemic rulings that restored worship. The more exceptions a law carries, the less "general" it is. A government that wants to shelter behind Smith now has to write a law with no exceptions at all, and few laws qualify.

Where I come down

I think the textual and historical case against Smith is the stronger one, and I do not say that lightly about an opinion by Justice Scalia. Three reasons.

One, the plain words. "Prohibiting the free exercise" describes the effect on the believer. A law need not be aimed at religion to prohibit a religious act, and the clause nowhere restricts itself to laws aimed at religion.

Two, the democratic argument cuts both ways. The reason the Bill of Rights exists is to protect minorities from what majorities do through legislatures. A rule that says "ask your legislature" is a rule that defers to the very bodies the First Amendment was written to restrain. Scalia thought the political process was good enough for peyote. It was, but only after the country raised a national storm, and not every faith can do that.

Three, the post-Smith record shows that the compelling-interest test was not the unworkable monster its critics feared. Federal RFRA has applied to the federal government since 1993, and RLUIPA has applied to prisons and land use since 2000. The sky did not fall. In Holt v. Hobbs, a unanimous case about a prisoner's beard, the Court applied the test to a prison system and concluded that the claim could be handled case by case, a story told in A Muslim inmate's half-inch beard and the 9-0 ruling against Arkansas. Courts apply strict scrutiny to speech every day. They can handle it for conscience.

Yet I will concede to the Scalia camp two points. First, if the Court overrules Smith, it needs a clear replacement rule, which is Justice Barrett's point, and a clumsy standard would invite the very judicial discretion we dislike. Second, the best protection for believers is a legislature that writes exemptions in the first place, which is why state RFRAs, and the political work behind them, matter regardless of what the Court does.

There is a larger lesson for conservatives about judicial method. Scalia's opinion was an honest attempt to follow the rule of law as he understood it. Reasonable originalists can disagree about the history, and the proper response to such a disagreement is argument, not accusation. The movement that insists on text and history should hold its own heroes to the same standard it holds its opponents.

The case in brief

1. Employment Division v. Smith (1990) held that a neutral, generally applicable law need not give a religious exemption, so two counselors fired for sacramental peyote use could be denied unemployment benefits.
2. The case for Smith rests on democratic accountability, equality before the law, and the burden of making judges referees of every regulation. It is a conservative argument with real force.
3. The case against Smith rests on the text's focus on the effect on the believer, scholarly evidence of an original practice of accommodation, and the vulnerability of minority faiths to laws written without them in mind.
4. Congress answered Smith with RFRA in 1993, and in Fulton (2021) the Court narrowed Smith from within without overruling it, while three Justices wanted it gone and two others wanted a replacement rule first.
5. Whatever the Court does, legislators decide in practice how much room believers get. Free exercise lives in statutes as much as in opinions.

What you can do: look up whether your state has a religious freedom restoration act on your legislature's website, and if it does not, ask your state representative what the bill would cost to pass.