Employment Division v. Smith

There was a story yesterday about an effort to put a proposition on the San Francisco ballot that would ban male circumcision of children.  Advocates of the ordinance consider the practice a form of child abuse.  Jewish groups, naturally, are opposed.

If such an ordinance were approved, it seems clear that it would be constitutional under the Supreme Court’s analysis in Employment Div. v. Smith.  Smith held that “the right to free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”  In other words, the fact that the circumcision of infant boys is central to the Jewish faith does not create a constitutional privilege from a local ordinance banning the practice (unless you could show that the law was intended as an attack on Jews).

I think that Smith was wrongly decided.  The reason it has stood for as long as it has is that only unpopular religions have been impacted by the case.  A neutral law that hurts a more popular faith (e.g., a total alcohol ban in a town that made holding Catholic Mass impossible) such as the proposed SF ordinance would, I think, lead to a swift about-face by the Court.

My book on Jacksonian Democracy discusses Smith because “disparate impact” and religion was raised during the Cherokee Removal crisis, though the Court was evidently unaware of this precedent when it decided Smith.  Georgia passed a statute that required all whites who wanted to enter the tribal area within the state to swear a loyalty oath to the State.  The Protestant missionaries who wanted to work with the Tribe refused and some were prosecuted and sent to jail.  Their supporters claimed that the Georgia law violated the freedom of religion (not as a federal constitutional matter, but in general). The Georgia legislature issued a report that essentially advanced the Smith rationale:

“The law which has excited so much feeling among our brethren of the eastern states is not partial or exclusive in its operation. . . . Our law in this, as well as other cases, aims at no individuals, and recognizes no exemptions.  Your committee therefore declare that no objection can be urged against the State, with any propriety, upon the score of its inequality, for the State made all men ‘equal under the law.'”

Overall, the debate about the imprisonment of the missionaries tends to undermine Smith, but I can’t do justice to that in a post.

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5 Responses

  1. Marc DeGirolami says:

    Gerald, I disagree with the Smith decision as well and I found very interesting the discussion of the Cherokee/Protestant missionary case (whom do you think the law was disadvantaging — the Cherokee (a minority), the Protestants (a majority, depending on the sect), both?).

    But I do not agree that Smith has endured because it only disadvantages minority religions. I think Smith has lasted because it almost immediately prompted the Religious Freedom Restoration Act and its state analogues — because it threw religious liberty into the hands of the legislature and the legislature (mostly, but not always) responded by reinstituting the Sherbert test (as well as Congress’s later response with the Religious Land Use and Institutionalized Persons Act).

    Some people think this was a very good development for religious liberty. I don’t think so, for a variety of reasons. But highly unpopular religions have been able to recover under these statutes, a fact which may also explain Smith’s longevity. I think there is also some evidence that notwithstanding the ostensibly hard-edged rule of Smith, lower court judges have been interpreting the holding somewhat liberally (using the fundamental rights “hybrid” carve-out) and broadening its reach.

  2. Marc DeGirolami says:

    Sorry, Gerard — my apologies for the error on your name.


  3. PrometheeFeu says:

    I agree with the Smith decision for several reasons.
    1) If a religious affirmative defense is generally possible, it creates a situation in which to quote Scalia: “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.'” That is in effect the end of the rule of law.

    2) If there are to be any restrictions at all on the use of such an affirmative defense, it becomes necessary for the courts to be able to evaluate the religiosity of the defendant’s beliefs. This is necessary as otherwise any defendant will be able to invoke such an affirmative defense. What religions will be accept? Is it necessary that the defendant be part of an organized religion? What if he is the only member of his religion? Is that acceptable? This is a whole can of worms which would be likely to lead to the creation of a hierarchy of religions in violation of the First Amendment.

    I think a correct reading of the First Amendment is that it protects all from being persecuted by the government for their religious beliefs. I think it is a mistake to read it as providing those with a religion with a shield against the law when it goes against their religion.

    As for the specific case of male child circumcision, I think there is a very valid argument to be made that it is an abusive mutilation of the child. It is irreversible and the child cannot do as much as express dissent. In those respects, it is quite similar to female circumcision which is rightly banned as being abusive. I think it would be quite inappropriate for any court to decide that the rights of the child to their own bodily integrity are inferior to the parent’s right to practice their religion.

  4. linda Massie says:

    It is quite clearly child abuse,to prevent any child from reaching maturity with parts of their genitals removed due to parental religious beliefs whether they be Jewish, Muslim or Christian extraction.

    In the United States male genital mutilation has been normalised for babies at birth, this is not the case elsewhere and it is time that American socety recognised the hundreds of deaths annually from this practice in their own country.

    Save the children end this abuse now.

  5. AF says:

    If the SF ordinance passes, it might be struck down under the CA constitution; the California Supreme Court has reserved the question as to whether the California Constitution applies Smith or Sherbert See North Coast Women’s Care Medical Group, Inc. v. Superior Court, 44 Cal. 4th 1145, 1158 (2008).