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| Steps to the United States Supreme Court, Washington DC, America |
In the United States, advocates of religious liberty are rejoicing as they celebrate their recent victories at the Supreme Court. Over the past year, they have successfully defended the rights of Americans to express their faith while on the clock for a public school district (Kennedy v. Bremerton School District), affirmed the right of religious schools to use government vouchers (Carson v. Makin), heightened the standards protecting workplace accommodations for religious beliefs (Groff v. DeJoy), and expanded free speech protections for business owners who don't want to compromise their religious convictions (303 Creative LLC v. Elenis).
Despite these significant wins, legal experts closely monitoring the developments on the legal battlefield believe that there is still an essential battle to be fought: Employment Division v. Smith. "I predict that religious liberty advocates will ramp up their attack on Smith," says Carl Esbeck, a law professor at the University of Missouri. "They understand that 303 Creative was a wonderful victory, but it was a halfway victory. It only protects speech... so if they want full protection under the First Amendment free exercise clause, they need Smith reversed."
The efforts to challenge Smith have already begun, with First Liberty and Alliance Defending Freedom, two religious liberty law groups, petitioning the Supreme Court to hear cases that call for Smith to be overruled. To understand the significance of Smith, one must delve into its history over three decades ago. In the late 1980s, two counselors from a rehabilitation center in Oregon were fired after ingesting peyote as part of a Native American religious ceremony. They were denied unemployment benefits as the hallucinogenic substance was illegal in Oregon. The counselors appealed to the Supreme Court, arguing that drug use should be protected when it's part of a religious ritual. Unfortunately, they lost their case as the court ruled in Employment Division v. Smith that a law does not violate the First Amendment's free exercise of religion clause if it is "neutral" and "generally applicable." Allowing religious exceptions, the late Justice Antonin Scalia argued in his majority opinion, would elevate religious beliefs above the law of the land, potentially leading to anarchy.
The ruling in Smith sparked dissatisfaction among religious liberty advocates, who found it disconcerting that a conservative justice like Scalia issued a ruling that seemed to favor the state over religious believers. In response to the Smith decision, a bipartisan group from Congress passed the Religious Freedom Restoration Act in 1993, which prohibits the government from imposing undue burdens on a person's free exercise of religion. While about 23 states have adopted state-level versions of this legislation, Smith remains a guiding precedent at the federal level, shaping how courts interpret the legal limits of religious activity. The main critique of religious freedom advocates against Smith is that it places less burden on the state to justify regulations, which has prompted them to call for its reversal.
The most recent challenge to Smith was seen in Fulton v. City of Philadelphia, where the Supreme Court ruled in favor of a Catholic foster services agency that was denied a contract by the city for refusing to place children in same-sex homes. However, the majority opinion, written by Chief Justice John Roberts, sidestepped the larger question of overturning the Smith precedent. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, in a separate concurring opinion, called for Smith to be overturned. Justices Amy Coney Barrett and Brett Kavanaugh also expressed doubts about Smith's adequacy in protecting against religious discrimination. Despite these calls, the Court has yet to take the step of overruling Smith.
Overturning Smith would raise complex questions about to what extent religious beliefs can provide exceptions to laws and regulations. The potential implications are vast, ranging from refusing to wear seat belts or paying taxes for religious reasons to allowing religious groups to bypass laws that they find contrary to their faith. Some religious rights advocates favor a return to the Sherbert v. Verner test, which requires the state to demonstrate a compelling interest before placing a legal burden on someone's religious beliefs or practices and finding the least restrictive means to achieve its legitimate goal.
However, the polarization of the Supreme Court has made tackling Smith more complicated, as the case now involves not only religious minorities seeking accommodation from the law but also the rights of larger, dominant religious groups opposed to certain social changes, such as the acceptance of LGBT individuals. Andrew Lewis, an associate professor at the University of Cincinnati, emphasizes that religious liberty should not be limited to one side of the political aisle but should be valued as a means to protect freedom and prevent overreach.
For Christians, maintaining consistency on religious freedom becomes crucial, especially in a pluralistic society where religiosity is declining. Emphasizing the need for a respectful and open public square, Daniel Bennett, a political science professor at John Brown University, urges Christians to ensure that the gospel can flourish authentically in such environments.
With a growing list of victories at the Supreme Court, religious liberty advocates are hopeful about the future. They see an opportunity to make significant strides in safeguarding religious freedom rights for all Americans.
