A landmark Supreme Court decision cutting back on religious freedom under the 1st Amendment may be in trouble.
In 1990 the Supreme Court ruled against two Oregon drug counselors who had been denied unemployment compensation after they were fired for ingesting peyote — an illegal substance — during Native American religious rites. Unlike other states, Oregon hadn’t made an exception in its drug laws for the religious use of hallucinogens.
Writing for the court, the late Justice Antonin Scalia held that the 1st Amendment’s protection of the free exercise of religion wasn’t violated when a state passed a “neutral, generally applicable law” that just happened to make it harder for some people to practice their religion.
Employment Division vs. Smith, the so-called peyote case, led to a bipartisan backlash in Congress, and in 1993 President Clinton signed the Religious Freedom Restoration Act. That measure allows believers to opt out of complying with laws that impose a “substantial burden” on the free exercise of their religion unless there is a compelling government interest in forcing them to comply and the law is the least restrictive means of furthering that interest.
Eventually the bipartisan consensus in favor of RFRA broke down. A turning point was a 2014 Supreme Court decision involving Hobby Lobby, a Christian-owned company that did not want to comply with an Obama administration rule that employee health insurance plans include female contraceptive coverage with no out-of-pocket costs. Citing RFRA, the court’s conservative majority held that complying with the mandate imposed a substantial burden on the owners’ free exercise of religion.
In her dissent, Justice Ruth Bader Ginsburg warned that RFRA was being used to harm “third parties” such as the female employees of companies whose owners objected to birth control. Disaffection with RFRA among Democrats has now grown to the point that it’s possible to imagine a future Democratic Congress repealing RFRA or radically reining it in.
But the Supreme Court could render such action futile.
Joined by Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh, Alito agreed that the court shouldn’t take the case because of “important unresolved factual questions” — notably, whether the coach had been fired for praying or for neglecting his duties.
Alito went on to say that the U.S. 9th Circuit Court of Appeals, which ruled against the coach, had taken a troublingly narrow view of teachers’ free-speech rights. But that wasn’t his most interesting observation.
Towards the end of his statement, Alito suggested that Kennedy had relied primarily on a free-speech claim rather than a freedom-of-religion claim because of “certain decisions of this court.” One of those decisions, Alito said, was Employment Division vs. Smith in which, he said, “the court drastically cut back on the protection provided by the Free Exercise Clause” of the 1st Amendment.
But he noted that “in this case” the court wasn’t being asked to reconsider that decision or another ruling, rooted in the federal civil rights law, that also harmed the coach’s prospects.
This line near the end of Alito’s statement was the judicial equivalent of the bad journalist’s practice of “burying the lead.” If four justices are willing to reconsider Employment Division vs. Smith and Chief Justice John G. Roberts Jr. is persuadable, the peyote decision could be overruled in the future and RFRA could in effect be constitutionalized.
If that happened, it wouldn’t matter if Congress repealed RFRA. Congress can provide more protection for religious exercise than the Constitution (as interpreted by the court) affords, but it can’t provide less.