Free Exercise cases and jurisprudence and employment division v. smith and first amendment and scalia and rehnquist test and neutral laws of general application

In Smith I, Justice Stevens had given the strong impression that if the Oregon Supreme Court concluded that there was no free exercise of religion exception for peyote ingestion in Native American religious ceremonies in Oregon law, then the US Supreme Court was likely to conclude that such activity didn't have 1st Amendment protection. Sure enough, when the case returned to the Supremes in 1990, with the Oregon Court concluding that Oregon criminal law (on peyote possession) makes "no exception" for religious use, the Supremes decided, 6-3, that Smith and Black were not entitled to unemployment compensation after being fired for ingesting peyote in a Native American religious ceremony. What is so striking in this case, however, is that the majority opinion of Justice Scalia so unskillfully (and so unnecessarily broadly) put forth the Rehnquist theory of FE, discussed previously, that it not only called down the well-reasoned objections of four justices but also inspired the US Congress to step in within a short time to overturn the Court's decision and its reasoning by enacting the Religious Freedom Restoration Act.*

[*Parts of this Act were declared unconstitutional in 1995 but were re-enacted in a slightly modified form five years later in the Religious Land Use and Institutionalized Persons Act (RLUIPA), which is just now being litigated in scores of cases around the country].

The Majority Opinion

In making his case, Justice Scalia did two things: (1) try to make it sound like the Rehnquist FE test was the majority and long-standing interpretive framework for FE cases throughout the Court's history and (2) explain away the abundant precedents beginning with Sherbert in 1963 by confining them to employment-related cases that had no relationship to criminal law issues. In so doing he introduced categories of thought (such as hybrid 1st Amendment claims) that were not only new to the Court's thinking but were so confused that the Court's FE jurisprudence had to be considered muddled after this case. It was not as if Scalia was expressly trying to muddy the waters. Indeed, he stated his one (and only) point several times: that a general law of neutral application (like the Oregon criminal law against peyote possession) would carry with it a presumption of constitutionality, and would be sustained if there was a rational basis for the law's having been enacted. Likening the peyote statute to a tax statute which all have to obey, Scalia tried to make it sound as if the Rehnquist test had been the leading test for FE concerns since the Reynolds case in the 1870s, despite the fact that Rehnquist himself had first advanced it less than a decade previously. He stated the Court's opinion quite baldly: "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." If this were to happen, the individual conscience would become a "law unto itself."

Thus it became the law of the land that a general statute of neutral application (i.e., one not aimed at a religous group) would be upheld against a FE challenge if it burdened religious practice as long as the State had a rational basis for enacting the law. The compelling interest test was laid to rest, or so it seemed.

Concurrence and Dissent

Only Justice Harry Blackmun had the temerity to suggest what was really on many people's minds: that the Supreme Court, under the real or perceived fear of a growing drug traffic in the US, was changing its FE jurisprudence, against FE of religion, in order to lend its support to the drug suppression effort. Though Justice O'Connor concurred in the judgment, she and three dissenters made a twofold case: (1) the test articulated by Scalia didn't comport with Supreme Court precedents going back to Sherbert, and (2) the threefold test of burden, compelling government interest and exemption that will unduly interfere with fulfillment of the governmental interest, was a proper one for disposing of the case at hand. Indeed, O'Connor and the three dissenters applied this three-fold test and came up with different results. O'Connor believed that exempting Smith and Black from compliance with the law would unduly interfere with the governmental interest of curtailing the drug trade, while the dissenters (Blackmun, Brennan and Marshall) argued that since the real governmental interest in the case was improper peyote use of in a sacramental context, and not drug trafficking generally, permitting Black and Smith to use peyote sacramentally would not hinder government efforts. Thus, the four Justices showed, really, that no new test was really needed: the old "compelling interest" test could yield different results based on the facts of the case.

Conclusion

Chief Justice Rehnquist had won a victory here of sorts, but the nature of the victory was really not clear. What was the opinion of one lonely Justice in 1981, which had became the opinion of three by 1986, was now the majority holding of the Court: if a neutral law of general application burdened religion, the Government only had to have a rational basis for passing the law for the statute to be upheld against a FE challenge. But religious groups of all strips, conservatives especially, were incensed and vowed to take matters into their own hands. They were goaded into action, ironically, against and by one of the most outspokenly conservative religious Justices on the Court: Scalia. The next chapter in the FE struggle will be told in connection with the Boerne case (1995).

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