Employment Division v. Smith is Wrong

I’ve never been a fan of the Court’s holding that a neutral statute of general application is constitutional even if it imposes a significant burden on a religion.  There is decent evidence that this was contrary to the original understanding of the Fourteenth Amendment, Michael McConnell wrote a terrific article making the case against the decision when it first came out, and others have offered plenty of criticisms.

Recent events, though, show why Smith rests on a questionable understanding of the First Amendment.  When a neutral and generally applicable employment discrimination statute was applied to churches, the Court adopted a “ministerial exception” and distinguished Smith.  When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom.  And those howls are right.  Now I’ll grant that you could say that this is just a matter for Congress or state legislatures. (In other words, religious freedom could mean more than what the Court says is constitutionally required, though that doesn’t explain the “ministerial exception” case.) But I think that the Catholic organizations upset about the new regulation ought to have a constitutional claim.  But they don’t.

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18 Responses

  1. anon says:

    Doesn’t RFRA apply here as to the federal government and effectively codify the pre-Smith world?

  2. Mike says:

    I think that, at least with respect to claims or defenses asserted against a federal government actor, RFRA does indeed control (assuming it isn’t waived, which it often is, mysteriously).

    As for the constitutional question, a concern: Could antidiscrimination laws survive an overruling of Smith, at least in most of their applications (certainly not in all)?

  3. Gerard Magliocca says:

    RFRA reduces the problem, of course, but doesn’t eliminate it.

  4. Joe says:

    “When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom.”

    The Washington Post, for those who care, had an article about this recently and noted:

    “That rule, however, exempted houses of worship and their employees, as well as other institutions whose primary purpose is to promote religious belief. Churches, synagogues, mosques and other places would not be required to cover contraceptives, it specified. Neither would religious organizations whose purpose is to promote belief, and that primarily employ and serve people of the same creed.”


    “Catholic institutions” etc. also will be given an extra year to phase things in. More than 1/2 of the states like NY also require contraceptives as part of health insurance for Catholic employers to some extent. Thus, a janitor at a Fordham University will be covered. The university health center doesn’t have to itself distribute though.


    The “howls” are overblown.

  5. Gerard Magliocca says:

    This notion of serving people of the same creed is very strange. Religious organizations exist to convert people of other creeds.

  6. Joe says:

    “This notion” has been part of many states’ rules for years. Interestingly, many of the people so shocked about it now were less so before. Curious that.

    When health regulations and other government regulations are involved, some pure separation of church and state has never been the rule. This includes strings to funding programs where evenhandness had to be supplied when the churches weren’t just dealing with members of their own faith. Of course, whatever the courts have decided, birth control has sex discrimination implications so that too provides a compelling interest warranting some balance.

  7. Shag from Brookline says:


    “This notion of serving people of the same creed is very strange. Religious organizations exist to convert people of other creeds.”

    suggests a strange zeal that people of other creeds in the employ of, or served by, a religious organization should not be empowered to resist its conversion efforts and rely upon their own consciences. The larger and more powerful religious organization might in effect impose economic pressures upon such people to accomplish its missionary position that could constitute involuntary servitude.

  8. brainfish2 says:

    I had the same initial reaction–that Catholic organizations don’t have a constitutional claim under Smith. I’ve since been persuaded that I’m wrong. In a nutshell, the coverage requirement is not a “neutral law of general applicability” because there are plenty of exemptions–waivers, not applicable to churches, etc. A court applying this test like then-Judge Alito did in Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), would be hard-pressed to conclude otherwise. Granted, Alito’s reading of Smith arguably guts it (how many laws are truly without any exception?), but the doctrinal tools are certainly there to accommodate the Catholic organizations’ free exercise claim.

  9. Shag from Brookline says:

    Perhaps ” … the Catholic organizations’ free exercise claim … ” would have more credence if they disclaimed federal funds and made it transparent to employees and persons they service of other creeds that they should go elsewhere to reflect their consciences. Or do these Catholic organizations demand imposing their views on employees and persons they service of other creeds? Or is the “Jesus-inspired” charity of Catholic organizations premised on succumbing to their proselytizing?

  10. Joe says:

    Query how the pre-Smith case of United States v. Lee (Amish/taxes), dealing with a law “exempting the self-employed Amish but not all persons working for an Amish employer” compares. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Exceptions being made was not damning, comprehensive federal scheme needing to be protected. Here we have a comprehensive employer health scheme + the sex discrimination angle as another compelling interest.

    If some balance was not provide & state practice for some years not in place as well, I’d be more concerned. I do think Smith was wrongly decided. But, a good balance is present here. At worse, it (arguably) needs to be tweaked a bit. Janitors to Catholic hospitals not getting birth control as part of their insurance package? And, hey, this isn’t just about Catholics. Any number of scenarios …

  11. A.J. Sutter says:

    I’m a little rusty on the topic, but isn’t there an issue here of whether the Free Exercise Clause protects organizations? I thought it protects individuals. Under the HHS rule, individual employees who are opposed to birth control on religious grounds remains free not to use it. Individual employees who aren’t opposed to it (which BTW might include some Catholics) are free to follow their consciences, too.

  12. Shag from Brookline says:

    Gerard’s post closes with this:

    “But I think that the Catholic organizations upset about the new regulation ought to have a constitutional claim. But they don’t.”

    Focus on Gerard’s “ought” with his disdain of Employment Division v. Smith. What would prevent a religious organization (including a newly established religious organization) from adopting some new type of religious ritual similar to peyote smoking that may not conform with civil law? Perhaps that was a “slippery slope” concern of Justice Scalia in structuring his opinion in Smith. Of course, Catholics are a much larger group than peyote smokers and perhaps Scalia might attempt to distinguish Smith from the current contraceptives brouhaha for that reason. Of course the current contraceptives brouhaha relates to female contraceptives, who bear the direct pregnancy risks. Perhaps the Catholic bishops should also be challenging male contraceptives as strongly.

    Perhaps Gerard’s “ought” is a form of proselytizing, so that the religious tale can wag the dog of the “others.”

  13. Shag from Brookline says:

    This post brought to the top of my too high reading pile Micah Schwartzman’s “What if Religion is not Special?” available at:


    I’m only up to page 15 of this 66 pager and McConnell is heavily cited for his several articles on the religion clauses.

    In my comment #12, substitute in the last line for “dog” “dog(ma).”

  14. Joe says:

    Religion is constitutionally special.

    I do think we need to follow a U.S. v. Seeger approach and if we do, it only adds to the need to make some compromises, especially since we have a Constitution, not a 1A, 2A, 10A or whatever. I think the Amish case is pretty telling and is the EEOC rule on sex discrimination.

    As to #12, even male contraceptives disproportionately benefit females.

  15. Shag from Brookline says:

    I finished reading Schwartzman’s article referenced in #13. It was not an easy read but most interesting, especially his part III that explores originalist and non-originalist interpretations of the religion clauses. With regard to U.S. v. Seeger, he adds Welsh v. U.S. as expanding the definition of religion beyond originalism. He does not, in this article, take sides on originalism vs. non-originalism. Here are some excerpts from his “CONCLUSION”:

    “And so we are forced to conclude that religion is not distinctive, at least not in the way that the Founding generation conceived it. This leaves us with an intellectual ache. The text tells us religion must be special, even though, for us, it is not.”

    “Those who view constitutional interpretation primarily in terms of common law adjudication, or who accept other forms of non-originalist approaches to the text, may find it possible to reconcile the Religion Clauses with the fact that religion can no longer be uniquely privileged among the diversity of philosophical, ethical, and moral doctrines embraced by many citizens today. For those who accept a living constitution, it can be perfected through judicial interpretation. For those who do not, the constitution, at least in its limited protections for religious freedoms, remains regrettably imperfect.”

  16. Joe says:

    I think “the way that the Founding generation conceived it” is an important proviso. Cases like Planned Parenthood v. Casey defines the ultimate question as:

    “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

    Cf. The path of the Founding generation who wasn’t sure if Unitarians should count.

  17. Shag from Brookline says:

    When I took conlaw back in the fall of 1952, the focus was mostly on the commerce clause and very little time was spent on individual rights. So I had the understanding going forward that the religion clauses also provided for freedom FROM religion. Back then originalism wasn’t in vogue.

    The phrase you describe as an important proviso was contained in the #12 article in the Conclusion that is about one page in length. In Part IIIA the author goes into detail, with extensive footnotes, to demonstrate that the founding generation understood the religion clauses “in terms of a theistic definition of religion” rather than “extending protection to secular doctrines, for example by providing for a more general freedom of conscience.” “For reasons unknown, the framers of the First Amendment rejected language that referred to ‘rights of conscience’ or to ‘equal rights of conscience,’ preferring a narrower formulation in terms of the ‘free exercise’ of religion.” (This may explain why some founders questioned Unitarianism as a religion.)

    Based upon this, the author suggests that the religion clauses would not have prevented Congress from legislating as to atheists and agnostics. (Maybe some other portions of the Constitution might have protected them.)

  18. Joe says:

    I appreciate it. I don’t mean to say freedom “from” religion is also not a concern TODAY.

    Torasco v. Watkins (non-theistic religions) not too long after the fall of 1952 reflected a growing view of “religion” that went beyond the general framer era view though the opinion was written by someone who often relied on history, if history disputed by some law professors of your era.