On April 20, the Supreme Court announced that it will hear argument next term in St. Mary Catholic Parish v. Roy, in which a Catholic preschool is challenging its exclusion from Colorado’s “universal preschool” program by arguing that Colorado must allow it to deny admission to LGBTQ children and children with LGBTQ parents because the state offers other types of exemptions from the program’s non-discrimination rules.
Nevertheless, the justices did not agree to answer every question raised in the Catholic school’s petition for review. In particular, they declined to revisit – and potentially overrule – 1990’s Employment Division v. Smith, a much-debated decision that limits the reach of the First Amendment’s free exercise clause.
For some court watchers, that adjustment may have triggered an episode of déjà vu. The justices made the same move just over four years ago, when they agreed to hear argument in 303 Creative LLC v. Elenis, a challenge to a Colorado anti-discrimination law by a graphic designer who planned to add wedding websites to her company’s offerings but opposed doing so for same-sex marriages on religious grounds. The court took up the designer’s free speech claim, but not her free exercise claim or the question of whether Smith should be overruled.
Because it’s relatively rare, it’s always notable when the court takes up a petition but alters the question or questions presented. But it was especially interesting in St. Mary Catholic Parish and 303 Creative, as the court seemed to be protecting a precedent that’s been at death’s door since 2021. That’s when five of the current justices “indicated that they are considering overruling Smith,” as SCOTUSblog contributor Stephanie Barclay has observed.
So why does Smith live on, not as a zombie precedent, but as a precedent that continues to be acknowledged and applied – even by justices who have said they don’t like it? There are several plausible explanations, including that the justices believe there’s no need to formally overrule a precedent that’s been narrowed so much that it doesn’t cause them any problems. At a time when commentators are debating the Roberts court’s willingness to overturn precedent, Smith’s journey illustrates just how complicated that process can be.
Employment Division v. Smith
The Smith case originated in the mid-1980s, when Alfred Smith and Galen Black were fired by a private drug rehabilitation organization for ingesting peyote, a hallucinogenic drug. The two men applied for unemployment benefits from the Employment Division of Oregon’s Department of Human Resources, but the division determined they were ineligible because they had been fired for “work-related ‘misconduct.’”
Smith and Black challenged this decision on First Amendment grounds, contending that they had ingested peyote as part of a Native American Church ceremony and that the Employment Division could not regard religious activity as misconduct.
The Oregon Court of Appeals and Oregon Supreme Court both sided with Smith and Black, concluding that they should not have been denied unemployment benefits. The Oregon Supreme Court explained that the denial of benefits violated the First Amendment’s free exercise clause, which states that “Congress shall make no law … prohibiting the free exercise” of religion, because the Employment Division could have accomplished its goal of discouraging workplace misconduct while still offering a religious exemption.
But in 1988, the Supreme Court sent the Smith case back to the Oregon Supreme Court for another look, holding that the lower court had erred by focusing on the department’s policy for drug use and not addressing the state’s controlled substances law, which outlawed peyote possession and use.
On remand, the Oregon Supreme Court again ruled for Smith and Black, holding that the state law violated the free exercise clause because it could achieve its goal of reducing access to and use of illegal drugs while still allowing the use of controlled substances in religious ceremonies.
The Supreme Court reviewed this ruling during its 1989-90 term and ultimately rejected it in April 1990. In an opinion by Justice Antonin Scalia, the court dispatched with the balancing test that it had previously used in free exercise cases, in which the government had to show that it had a compelling interest in upholding a challenged law and that the law was the least restrictive means through which to achieve this goal.
Scalia said that using that test across the free exercise context would “court[] anarchy” by “open[ing] the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” He went on to explain instead that the First Amendment offers no protection from “a neutral, generally applicable law” – that is, a law that applies to everyone and was not written to target a specific faith group or religious practice – and thus courts should not apply the compelling interest test in cases involving such laws. Oregon’s controlled substances law fit that category, he continued, because it was aimed at promoting public safety, rather than interfering with religious practice, and because it barred everyone, not just members of the Native American Church, from using peyote.
The backlash to Smith
The Smith decision sent shockwaves through the legal landscape and American religious groups, which had come to rely on courts to apply the compelling interest test and sometimes force changes to laws when complaints to legislators fell on deaf ears. Critics contended that the Supreme Court had hollowed out the First Amendment’s religious exercise protections by severely limiting the circumstances under which those protections would apply. Moving forward, these critics said, lawmakers would have little incentive to address a policy’s indirect impact on religious practice, because, under Smith, all they had to worry about was meeting the neutral and generally applicable standard. In other words, even if a law burdened a specific religious organization, it was now constitutional as long as it didn’t single out that particular group but applied to everyone.
In 1993, Congress responded to the outcry over the Smith decision by passing the Religious Freedom Restoration Act, which restored the compelling interest test. At a signing ceremony for the law in November 1993, President Bill Clinton praised lawmakers for taking action to correct what he saw as the Supreme Court’s mistake. He noted that religious groups and individuals had lost more than 50 free exercise cases in the three-and-a-half years that had passed since the court decided Smith. “The power to reverse by legislation a decision of the United States Supreme Court is a power that is rightly hesitantly and infrequently exercised by the United States Congress,” Clinton said. “But this is an issue in which that extraordinary measure was clearly called for.”
Smith was effectively overruled – but not for long. In 1997, it escaped irrelevancy when the Supreme Court held in City of Boerne v. Flores that RFRA did not apply to state actions, only to actions by the federal government. In other words, free exercise lawsuits over state laws and regulations would proceed under the Smith standard, meaning neutral and generally applicable policies would not be subject to the compelling interest test. (Except in states that passed their own versions of RFRA in response to City of Boerne, but that’s a story for another day.)
The battle continues
Although the federal RFRA has proven to be a powerful tool for religious individuals and groups, calls for Smith to be overturned have not gone away. So far, the Supreme Court has not heeded them, although it has expanded the reach of the free exercise clause – and limited Smith’s impact – in other ways, most notably by limiting what types of laws qualify as “neutral and generally applicable,” as the court’s conservative majority has grown (to some extent in a more libertarian direction).
The two most significant developments both happened approximately five years ago. First, in interim docket cases addressing COVID-19-related restrictions on religious gatherings, a majority of justices embraced what’s sometimes referred to as the “most-favored-nation” approach to religious freedom. In the COVID context, this meant that state governments could not prohibit people from gathering together for worship if the same number of people would have been allowed to gather had they been in a secular space, like a liquor store or at the acupuncturist. As the majority put it in Tandon v. Newsom, which addressed California’s decision to prohibit in-home religious gatherings of more than three households but not gatherings of the same size at secular locations, such as restaurants, “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” The upshot of Tandon was that, moving forward, very few laws would qualify as “neutral and generally applicable.”
Second, the court further refined the definition of “generally applicable” in Fulton v. City of Philadelphia, Pennsylvania. The case centered on a Catholic foster-care agency that, for religious reasons, refused to assess whether unmarried or same-sex couples were qualified to be foster parents. When they became aware of this policy, city officials instructed the Department of Human Services to stop partnering with the Catholic agency, and the department did so, informing the foster-care agency that it had violated non-discrimination protections. The foster-care agency and three foster parents sued, alleging that the city had infringed upon their First Amendment rights.
In June 2021, the Supreme Court unanimously ruled against the city. In an opinion by Chief Justice John Roberts, it held that, in refusing to contract with the foster-care agency over its religious beliefs, the city had violated the free exercise clause. While the court did not overrule Smith, it greatly limited its application by clarifying that a law cannot be considered “neutral and generally applicable” if it allows for any exceptions – even if no one has ever received an exception. Roberts emphasized that Philadelphia’s non-discrimination rules included “a mechanism for individualized exemptions.” It didn’t matter, according to Roberts, that no exemptions had ever before been granted.
What’s next for Smith?
The separate writings in Fulton made it clear that Smith had only narrowly escaped that case with its life. However, they also made it clear why there were not five votes to overturn it.
This latter conclusion can be extracted from Justice Amy Coney Barrett’s three-page concurring opinion, which was joined in full by Justice Brett Kavanaugh and in part by Justice Stephen Breyer. Barrett, in a section joined only by Kavanaugh, expressed doubts about Smith, questioning why the reach of the free exercise clause should be so limited compared to other First Amendment rights, such as free speech. But Barrett noted that Smith cannot be overruled without something to “replace it,” and that swapping it with a “categorical strict scrutiny regime” would raise “a number of issues,” including how courts would determine that a burden on religious exercise is significant enough to require changes to a challenged law. In other words, Barrett and Kavanaugh acknowledged that they were dissatisfied with Smith, but also that they, along with Breyer, had concluded that overruling Smith would not be as easy as it might seem and that finding the right solution should be left for another day.
In his 77-page opinion in which he agreed with the result, if not the reasoning, Justice Samuel Alito – joined by Justices Clarence Thomas and Neil Gorsuch – went a step farther than expressing dissatisfaction. He openly criticized Smith and said it was “[r]egrettabl[e]” that his colleagues had declined to face the question of overruling it head on.
Alito characterized Smith as a “severe holding” that poses a significant threat to religious groups. He outlined a variety of hypothetical laws that could meet the “neutral and generally applicable” standard and yet would disrupt religious practice in “startling” ways, such as a nationwide ban on alcohol that makes it impossible for Catholics to celebrate Mass. Alito acknowledged that RFRA “restored part of the protection that Smith withdrew,” but he noted that RFRA “can be weakened or repealed by Congress at any time.” For that reason and others, Alito urged his colleagues to “reconsider Smith without further delay.”
Approximately five years have passed since Alito wrote those words, and most of the justices have apparently still not accepted that proposal. Instead, in 303 Creative, the court side-stepped the Smith question, and then it did so again in St. Mary Catholic Parish, in which the justices will continue the work of Tandon and Fulton, refining the meaning of “generally applicable.”
So will Smith ever be overruled? It’s certainly possible, since three current justices – Alito, Thomas, and Gorsuch – have called on the court to revisit it, and two others – Barrett and Kavanaugh – have acknowledged their frustration with Smith. As David French discussed during the April 23 episode of the Advisory Opinions podcast, the court may be waiting for a free exercise case on a law that’s undeniably neutral and generally applicable – in other words, a case in which hesitant justices will be willing to directly confront Smith. These hesitant justices might also be spurred into action if Congress updates RFRA to prevent it from being used to challenge health care or LGBTQ non-discrimination policies – changes that have been proposed by Democratic lawmakers in recent years, as I reported in 2023 for the Deseret News. Until either of those developments happen, though, expect Smith to live on – to die another day.