The United States Supreme Court may be poised to reconsider or even overrule one of its landmark free exercise cases–Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). A more recent case out of Oregon, Klein v. Oregon Bureau of Labor and Industries, has now been relisted several times by the Court as it considers whether to review it. The plaintiffs in Klein, two bakers who claim a First Amendment right not to be forced to make custom cakes celebrating same-sex weddings, are specifically asking the Supreme Court to overrule Smith.
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Smith‘s effect on the religious liberty landscape in America can hardly be overstated. The Smith case arose when two members of the Native American Church were fired from their jobs for ingesting peyote (an illegal drug) for sacramental purposes. The state of Oregon rejected their applications for unemployment compensation, concluding that they had been discharged for work-related “misconduct” and were thus statutorily ineligible for benefits. In a dramatic shift, the Supreme Court abandoned the compelling-interest test that it had applied in free-exercise cases since 1963 (Sherbert v. Verner) and held that facially neutral laws of general applicability which burden religious exercise need not be justified by a compelling governmental interest. The Court held that, “the sounder approach [to challenges to generally applicable criminal prohibitions], and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges.” Applying Smith, the Oregon courts ruled against the bakers, who were then forced to close up shop and ordered to pay $135,000.
The bakers’ shock and disappointment was probably similar to the shock and disappointment which followed in the wake of Smith and compelled numerous religious and civil rights organizations in the 90’s to urge Congress to restore strong legal protection for religious liberty. Together these organizations formed a 68-member coalition which included such organizations as the Baptist Joint Committee for Religious Liberty, the American Jewish Congress, Americans United for Separation of Church and State, Christian Legal Society, the American Civil Liberties Union, Agudath Israel of America, and the National Association of Evangelicals. These diverse groups understood how vulnerable the free exercise of religion was following the Supreme Court’s decision in Smith.
In particular, Congress received a ton of evidence which showed that religious liberty was particularly vulnerable in two different contexts: the prison context and the land use context. Thus, the Religious Land Use & Institutionalized Persons Act (“RLUIPA”) was birthed as a counter measure to Smith. It was enacted with overwhelming bipartisan support, passed both the House and Senate by unanimous consent, and was signed into law by President Clinton on September 22, 2000.
While we can be thankful that Smith led to the passage of RLUIPA, a decision by the Supreme Court to overrule Smith could help restore robust religious liberty protections beyond the land use and institutionalized persons contexts. Stay tuned. We will be watching this case closely.