Conservatives have a landmark Scalia religion opinion in their sights

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — Religious groups have long urged the Supreme Court to reverse a 1990 decision that diminished free-exercise protection and that was written, paradoxically, by the conservative exemplar Justice Antonin Scalia.

That decision, against two members of a Native American church who lost their jobs after engaging in the sacramental use of peyote, made it easier for states and local governments to defend laws that incidentally infringed on religious practices. It marked a significant departure from court precedent dating to 1963.

Justice Sandra Day O’Connor thought the move so misguided that as Scalia announced his opinion from the bench on April 17, 1990, she slipped a private note to Justice Harry Blackmun: “Harry, the Court took the wrong turn today in the free exercise case in my view. It pains me.”

O’Connor’s note foreshadowed the fallout from Employment Division v. Smith. Almost immediately, religious rights advocates pushed for legislation in Congress, and the court itself began constraining the reach of Smith to enhance the ability of believers to obtain religious exemptions.

The repercussions endure, but with a twist, because of a Supreme Court that has grown more conservative and because of the various religious disputes it has chosen to take up.

While early cases in this line testing the First Amendment guarantee of “free exercise of religion” involved minority religious groups, such as the Native Americans in the 1990 case and Santeria practitioners in a 1993 dispute, more recent cases have been brought by Catholic and other Christian adherents seeking religious exemptions. And, unlike in 1990, religious challengers have won these cases.

In a case to be argued on Tuesday, two Catholic preschools and the archdiocese of Denver want to participate in a Colorado universal preschool program without signing the state’s nondiscrimination agreement covering sexual orientation and gender identity.

A federal appeals court ruled against St. Mary Catholic Parish, relying on the Smith decision. “The nondiscrimination requirement exists in harmony with the First Amendment and does not violate the Parish Preschools’ First Amendment rights,” the 10th US Circuit Court of Appeals said as it upheld a trial judge’s decision favoring the state.

The Scalia majority in 1990 had said states no longer had to show a “compelling” governmental interest to justify a law that was “neutral” toward religion, that is, did not take direct aim at its practices, and was generally applied toward all people.

Given the court’s recent pattern, it appears likely that a court majority would be poised to reverse the lower court ruling against the Catholic groups. The question is how far the justices will go. As lawyers for St. Mary Catholic Parish and the other Colorado challengers make their case for the preschool funds, they are again pressing the court to fully overturn Smith.

The current bench under Chief Justice John Roberts has continually sided with religious conservatives and avoided Smith, for example, by finding that a disputed law fails to meet the threshold of being neutral. Three of the current justices, however, have publicly complained about that tack and declared their desire to overturn Smith.

Smith has “proven unworkable in practice,” Justice Neil Gorsuch, who succeeded Scalia following his 2016 death, wrote in a 2021 concurrence. “No fewer than ten Justices – including six sitting Justices – have questioned its fidelity to the Constitution …. So what are we waiting for?”

The Trump administration, backing the Catholic preschool, suggests in its brief that the court can circumvent, rather than reverse, the 1990 case. It argues the Smith decision “has no force” in situations when government has restricted public benefits based on religious exercise.

“Colorado cannot claim the mantle of general applicability,” the US Solicitor General’s office adds, “when it allows schools to depart from uniform even-handedness for some characteristics, yet refuses faith-based preferences.” (The program gives preferences to disabled and low-income children; the 10th Circuit found that such provisions did not undermine the general applicability of the program.)

“St. Mary’s has a very good claim, even under Smith as the court has recently interpreted it,” said Stanford University law professor Michael McConnell, a religion scholar who was one of the most outspoken critics of the 1990 ruling. “I really thought there would be no free exercise cases again. But the concept of being ‘neutral’ and ‘generally applicable’ turns out to be extremely porous.”

From peyote to Covid

The 1990 case began when Alfred Smith and Galen Black, counselors at a private rehabilitation center in Oregon, were fired for using peyote, an unlawful hallucinogen. They were then rejected for state unemployment benefits. After they sued, the Oregon Supreme Court ruled that the state violated their free exercise of religion by denying benefits for an activity related to their religious practice.

Hearing the state Employment Division appeal, the justices led by Scalia reexamined precedent dating to the 1963 Sherbert v. Verner that had dictated a “compelling” governmental interest to justify a law that burdened a religious practice. Scalia thought the precedent wrongly permitted exemptions that should be left to the legislative process.

But legal scholars and an array of religious advocates believed the new decision in Employment Division v. Smith would particularly harm minority religions. Congress in 1993 responded with passage of the Religious Freedom Restoration Act, which reestablished the compelling governmental interest standard for federal laws infringing religious practices.

The less protective Smith standard remained for state and local governments – to a degree. The justices themselves were already revising Smith, beginning with a 1993 case involving Santeria when they struck down a Hialeah, Florida, city ordinance that forbade the killing of animals for ritual sacrifice. (Scalia signed onto much of that decision.) It became harder for governments to meet the test that a law be neutral to avoid being subject to tougher judicial scrutiny.

The Supreme Court was open to free-exercise arguments during the Covid-19 pandemic. The justices in 2021 bolstered religious-exemption claims as they ruled, for example, that a California prohibition on gatherings of people from more than three households could not be used to stop Bible study sessions and prayer meetings held in homes.

They also sided in 2021 with religious challengers in a case that began after the city of Philadelphia suspended a foster-care contract with Catholic Social Services because the group would not certify same-sex couples as foster parents. At the time, Roberts said it was not necessary to revisit Smith, as religious groups had urged, because the disputed Philadelphia requirement fell outside the Smith coverage.

Justice Samuel Alito, joined by Justices Gorsuch and Clarence Thomas, characterized that interpretation as a bit of a trick. “This decision might as well be written on the dissolving paper sold in magic shops,” wrote Alito. The trio faulted the majority for refusing to confront Smith. Those three right-wing justices, it just so happens, are aligned with the general ideology of Scalia, who died in 2016.

“After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito said of the Fulton v. Philadelphia case that had been argued in November 2020 and finally resolved the following June.

In the new controversy, St. Mary Parish v. Roy, Colorado state lawyers dispute the assertion that the Smith framework is unworkable. They emphasized that a trial judge found no evidence that the nondiscrimination requirement, which would protect preschoolers of same-sex couples, arose from any religious hostility.

The Becket Fund for Religious Liberty, representing St. Mary’s, faulted Colorado for attempting to “sideline” more recent Supreme Court cases, including the 2022 Carson v. Makin, when the justices invalidated a Maine tuition-assistance program that excluded religious schools.

“Like Rip Van Winkle,” Becket lawyers asserted, “Colorado appears to have slept through the past three decades of Free Exercise decisions from this Court – all but one in favor of religious litigants – which confirm that numerous free exercise doctrines exist apart from Smith.”

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