In our April 15, 2019 blog post, we discussed a petition for review that was pending before the United States Supreme Court. The petition was filed in the case of Klein v. Oregon Bureau of Labor and Industries, and it involved two bakers who claimed a First Amendment right not to be forced to make customized wedding cakes celebrating same-sex weddings. The Kleins’ petition explicitly asked the Supreme Court to overrule Employment Division v. Smith, 494 U.S. 872 (1990), a landmark Free Exercise case that motivated Congress to eventually enact the Religious Land Use & Institutionalized Persons Act (RLUIPA). The Oregon state courts had relied on Smith to rule against the Kleins.
On June 17, 2019, the Supreme Court granted the Kleins’ petition but not for the purpose of conducting its own review or revisiting Smith. Instead, the Court granted the petition only to vacate the existing judgment against the Kleins and remanded the case back to the Oregon state courts for further consideration in light of the Court’s recent decision in a similar baker case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. (2018). The Supreme Court held in Masterpiece Cakeshop that there was evidence that the Colorado Civil Rights Commission’s evaluation of the baker’s case showed unlawful hostility to the baker’s religious beliefs.
The Court’s decision not to hear the Klein case may indicate the Court’s reluctance to revisit or overturn Smith. Smith held that neutral laws of general applicability which burden religious exercise need not be justified by a compelling governmental interest. In the wake of Smith, religious groups and civil rights organizations shared a concern for the negative effects of that decision on religious liberty in America. As a result their lobbying, Congress ultimately enacted RLUIPA in order restore heightened protections for religious liberty in the context of land use regulation and for institutionalized persons. Without the ability to seek protection under the Free Exercise Clause of the First Amendment, thousands of religious groups have benefited from RLUIPA’s protections. We’ve been privileged to help so many of them know and assert their rights in the land use context.
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