When it comes to Smith… Don’t Hate the Player, Hate the Game

Over three decades ago, an ostensibly unremarkable case involving an Oregon drug prohibition was decided in a fashion that caught litigators and law clerks off guard. This infamous ruling, formally known as Employment Division, Department of Human Resources of Oregon v. Smith (1990), didn’t surprise jurists simply because of its outcome in favor of the Employment Division. Rather, it was the way Justice Scalia capitalized on the chance to clarify Free Exercise Clause legal doctrine that led it to become one of the most controversial rulings of the last half-century.

In order not to get swept up in the facts of the case, I might dare to boil down Smith to a dispute over the abstract legal standards that ought to be applied when attempting to justify laws that restrict the free exercise of religion. In this particular instance, an Oregon drug law banned the use of peyote: a powerful hallucinogen ingested as part of a Native American Church ritual. As I already alluded to, the Court ultimately upheld the law despite its incidental burden on Native Americans and their ability to freely exercise their religion via ingesting this potent natural drug. 

To begin the majority opinion, for which the late great justice authored every word, Justice Scalia asserted that: “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.” Adding on to this, he tackled what he perceived to be a great misunderstanding of the Free Exercise Clause in plain and unambiguous language, when he exclaimed that permitting exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Justice Scalia went on to elaborate that: “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the… restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” To be clear, this core premise of the decision can be summarized by the following sentence: the Constitution does not allow religious adherents to violate “neutral (or non-targeting) laws of general applicability” under the Free Exercise Clause.  

Crucially, what Justice Scalia is really getting at here is what is formally referred to as the Lockean ‘belief-action distinction.’ While Locke was a revolutionary advocate for religious toleration, he also believed there was no need to grant exemptions from generally applicable laws on account of individual religious convictions. In fact, he went as far as saying that: “if governmental officials faithfully performed their duties and kept the boundaries between state and religion, then the government would seldom intrude upon an individual's religious freedom.” As you can infer, Locke was wary of the public disorder that excessive exemptions could cause. 

In order to substantiate his claim that the Court has recognized this particular distinction for decades, Justice Scalia invoked the following passage from Reynolds v. United States (1879):

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this 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." — Chief Justice Morrison Waite 

Then, delivering one final blow, Justice Scalia insisted that:

“The only decisions in which we have [ever] held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.” — Majority Opinion (Section A)

Hence, if religious citizens such as Alfred Leo Smith and Galen Black wanted to be exempted from the ‘neutral and generally applicable’ peyote prohibition law, Scalia implied that they ought to petition their state legislature for an exemption to be codified into law. This method of redress, Justice Scalia insisted, is far more appropriate than empowering the unelected justices of the SCOTUS to ‘carve up’ duly-enacted laws passed by legislative majorities. Why? Because the latter scenario presents a “countermajoritarian difficulty,” since it often overrides democratic will. 

In reply to Scalia’s resolute commitment to stare decisis, critics have since harangued him as a disingenuous ‘defender’ of religious freedom who “all but erased the Free Exercise Clause,” by casting aside the “compelling state interest test” that was developed in order to resolve Sherbert v. Verner (1963). Needless to say, there are many scholars who view Smith as Justice Scalia’s worst opinion and they continue to argue for it to be overturned. But would this really be in religious citizens’ best interests? Is the Smith doctrine uniquely disastrous for religious liberty?

In reply to these critics, I must say I fervently disagree. This is not because I have a special affinity for the particulars of the Smith doctrine per se, but because upon closer examination, you will discover that Smith is merely an imperfect yet workable solution to what Justice Stephen Breyer called “a problem that nobody could figure out how to answer.” Consider thinking about this legal dilemma this way; even if Justice Scalia had applied the ‘forsaken’ strict scrutiny test to Smith, such action would have marked a radical shift in jurisprudence that would likely have been just as (if not far more) disastrous for citizens of faith. Allow me to explain…

While it may indeed be tempting to try to resolve this case via invoking the “compelling government interest test,” this is wishful thinking because, as Scalia dutifully recognized, this would only catapult society towards a system in which “judges are entrusted with weighing the social importance of all laws against the judicially-determined ‘centrality’ [of incidentally burdened] religious beliefs.” As is too often overlooked in his opinion, he clarifies that this sort of activity is not something jurists should ever find themselves in the business of, when he writes: “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretation of those creeds." In other words, applying strict scrutiny to resolve cases such as Smith would require judges to exceed the scope of their constitutional authority, making them de facto theologians, which would not only confuse the very purpose of the judiciary, but it would also render it ripe for abuse by its unelected members. Under such circumstances, “the government [would] exist only in name.” We might imagine a rogue or emboldened judiciary that, obfuscated by the arbitrations invoked by strict scrutiny, is intent on bulldozing Native land because in their prejudicial view; the land-related rituals aren’t ‘central enough’ to the Native’s religious beliefs. Is this sort of judicial tyranny really a safer alternative to the Smith precedent? To me, this sounds like a recipe for a ‘Kangaroo’ Court. 

In conclusion, there is no perfect way to balance robust religious liberty with the rule of law. As we have discussed, too much protection for religious liberty undermines the rule of law, whereas too much rigidity to the rule of law can prove hostile to free exercise (especially for minority religions). Furthermore, interest balancing tests tend to augment the ‘limited’ scope of the judiciary, exacerbating the risk of governmental infringement upon free exercise via judicial bias. In this sense, this debate has been almost entirely misrepresented to us. This is not a choice between reverting to some ‘utopian’ pre-Smith doctrine or settling for Smith and all its drawbacks. Instead, this is fundamentally a choice between ‘the devil we know’ and ‘the devil that we don’t know.’ Therefore, while Justice Scalia’s ruling has certainly led to some poor legal ramifications for religious citizens, this doesn’t mean that Smith ought to be overturned or even that we’ll ever find a suitable replacement for it. At least for the time being, as we remain without an obvious or well-developed replacement for the Smith doctrine, overturning this lynchpin of legal precedent would be wholly imprudent. Sure, religious liberty rests on shaky ground these days. I am willing to concede that. But some ground is better than no ground, right? Let us not lose sight of this.

Tom Bickel is a senior concentrating in Political Science and Philosophy at Brown University. He serves as a staff writer for the BULR Blog, and can be reached at thomas_bickel@brown.edu.