Employment Division v. Smith Case Brief | Free Exercise Clause

In City of Boerne v. Flores (1997), the U.S. Supreme Court unanimously struck down the Religious Freedom Restoration Act (RFRA), holding that Congress exceeded its remedial enforcement powers under Section 5 of the Fourteenth Amendment by attempting to redefine the meaning of a constitutional right (the Free Exercise Clause) that the Court had previously interpreted in Employment Division v. Smith (1990); the Court emphasized that while Congress can prevent or remedy violations of constitutional rights, it cannot define the meaning of constitutional rights, which belongs exclusively to the judiciary, and that remedial legislation must demonstrate congruence between its means and ends rather than providing a blanket exemption from generally applicable laws.

In Kassenbach v. Morgan, the Court held Section 5 gives Congress power to remedy or prevent unconstitutional actions. In Sherbert v. Verner (1963), the Court established that laws substantially burdening free exercise of religion require a compelling interest. Employment Division v. Smith (1990) changed this, holding neutral laws need not show compelling interest. In response, Congress enacted RFRA in 1993, requiring states to show compelling interest for religious burdens. In City of Boerne v. Flores (1997), the Court held RFRA unconstitutional as applied to states because Congress lacked power to expand Section 1's scope beyond the Court's interpretation. Section 5 cannot decree the substance of constitutional restrictions.

The Religious Freedom Restoration Act (RFRA) of 1993 is a U.S. federal law that reinstates the Sherbert Test, requiring strict scrutiny when determining whether a law substantially burdens religious exercise; under RFRA, the government must demonstrate both a compelling government interest and that the law is the least restrictive means to achieve that interest, though the Supreme Court later held RFRA unconstitutional as applied to states in City of Boerne v. Flores (1997), while it remains applicable to federal law.

The Religious Freedom Restoration Act (RFRA) of 1993 was a federal law designed to strengthen religious freedom protections in the United States. It required that any government regulation imposing a substantial burden on religious exercise must demonstrate a compelling governmental interest and be narrowly tailored to achieve that interest. The Supreme Court had previously weakened RFRA's application in City of Boerne v. Flores (1997), which limited its scope to cases involving religious exercise rather than other aspects of religious freedom.

The Religious Freedom Restoration Act (RFRA) of 1993 attempted to restore the Sherbert test by requiring narrowly tailored burdens on religious exercise. However, in Boerne v. Flores (1997), the Supreme Court struck down RFRA as applied to the states, holding that only the Court can define the First Amendment. About half the states subsequently adopted their own religious freedom restoration acts, creating a patchwork of protections.

In Fulton, Philadelphia controls foster care through 30+ private agencies. Catholic Social Services, acting on Catholic beliefs about sex and marriage, does not certify unmarried heterosexual or same-sex couples. After media exposure, the city cut off referrals. The Supreme Court was asked whether free exercise plaintiffs can only succeed by proving discrimination or whether courts must consider other evidence that a law is not neutral and generally applicable. The case raises questions about revisiting Employment Division v. Smith (1990).

The Free Exercise Clause warrants equal protection as fundamental rights. Smith v. Organized Church established that neutral general laws don't violate Free Exercise, but subsequent cases like Trinity Lutheran and City of Fulton have carved exceptions. Courts must apply analogical reasoning to determine which precedent best fits specific facts, as recent decisions have uniformly protected religious liberty while recognizing Smith's limitations in certain contexts.

Recent Supreme Court decisions like Masterpiece Cakeshop (2018) and Fulton v. Philadelphia (2021) represent narrow victories for religious liberty rather than broad constitutional changes, as the Court has continued to apply the Smith v. Oregon (1990) framework that limits free exercise claims to neutral, generally applicable laws, though these cases have established important principles about government discrimination against religious entities and the need for strict scrutiny when laws create exceptions for secular conduct.

The Free Exercise Clause of the First Amendment has undergone significant doctrinal evolution since 1990, shifting from the strict scrutiny standard established in Employment Division v. Smith to a more nuanced approach that distinguishes between neutral, generally applicable laws and discriminatory ones, as demonstrated in recent Supreme Court cases including Trinity Lutheran v. Comer (2017), Espinoza v. Montana Department of Revenue (2019), and ongoing litigation in Fulton v. City of Philadelphia, which tests whether government can compel religious institutions to certify relationships contrary to their religious convictions.

Employment Division v. Smith established that neutral, generally applicable laws may burden religious exercise without violating the Free Exercise Clause. However, this precedent has created significant problems in religious freedom cases. Smith does not apply when the government uses individualized exemptions or makes exceptions that undermine its rules. In Fulton v. City of Philadelphia, the petitioner argues that Philadelphia violated Smith by applying a non-discrimination requirement selectively while exempting other forms of discrimination, thereby undermining the law's neutrality. The discussion reveals that Smith's narrow view of the Free Exercise Clause has caused instability in religious freedom jurisprudence, as courts below applied Smith despite its inapplicability to this case. Some legal scholars argue Smith should be overruled to restore meaningful protection for religious exercise against government overreach. The core tension involves balancing government interests in preventing discrimination against prospective foster parents against religious organizations' rights to operate according to their convictions.

State-level religious liberty protections are crucial because federal protections like the Religious Freedom Restoration Act (RFRA) cannot apply to states, and the Supreme Court's 1990 Employment Division v. Smith decision significantly weakened First Amendment protections by ruling that neutral laws of general applicability do not violate religious liberty. The Religious Liberty in the States Index evaluates 47 distinct ways states can protect religious freedom, revealing significant variation: Florida ranks first with approximately 75% of protections, while West Virginia ranks last with only about 25%. Key protections include state RFRA legislation, medical conscience protections, religious holiday excused absences in schools, and parental rights regarding sex education. Interestingly, Illinois ranks third despite being a blue state, having passed most protections before 1994 when Democrats and Republicans could cooperate on religious liberty issues. Red states like Indiana and West Virginia rank poorly partly due to corporate lobbying influence and lower Catholic populations, though states like Montana and Florida have made significant progress. The research shows that RFRA protections actually benefit non-Christian religions more than Christians, as minority religions face greater risks of conflict with general laws.

The Religious Freedom Restoration Act (RFRA) was passed in 1993 as bipartisan legislation to restore heightened constitutional scrutiny for laws affecting religious practices after the Smith decision. However, in Employment Division v. Smith (1990), the Supreme Court ruled that generally applicable laws like controlled substance laws are subject to lesser scrutiny. RFRA was Congress's response to restore the previous standard. In 1997, the Supreme Court ruled in City of Boerne v. Flores that RFRA does not apply to states, prompting approximately 30 states to pass their own RFRA-like legislation. Some state constitutions already provide equivalent or greater protection for religious practices.

The US operates under dual sovereignty where states function as independent nations bound by federal government. The federal government has only enumerated powers in Article I, Section 8. States retain significant sovereignty and can pass stronger religious protections than federal law, with over 30 states enacting their own RFRA statutes. State constitutions may provide even stronger protections, with some courts holding state free exercise clauses require strict scrutiny for substantially burdening religious exercise. RLUIPA provides additional protections using Congress's Commerce Clause authority, requiring strict scrutiny for land use laws substantially burdening religious exercise. This federalist structure creates layered protections for religious exercise at federal, state, and local levels.

This segment examines the Religious Freedom Restoration Act (RFRA) of 1993 and its subsequent invalidation in City of Boerne v. Flores (1997). RFRA attempted to restore the Sherbert strict scrutiny standard for all government actions burdening religious exercise. However, the Supreme Court struck down RFRA as applied to states, ruling that Congress lacked authority under the Fourteenth Amendment to compel states to provide greater religious liberty protections than the Court had previously recognized. The Court held that the judiciary, not Congress, has primary responsibility for interpreting constitutional protections. Consequently, RFRA applies only to federal actions, while states retain more flexibility in regulating religious exercise under the Smith framework.

State constitutions contain similar but differently worded protections for fundamental rights compared to the Federal Constitution, including freedom of speech, freedom of religion, and due process rights. Rather than treating these as identical to federal protections, courts should recognize them as distinct rights flowing from two separate constitutions. When different words are chosen in state constitutions, there is typically a reason for the difference, and originalist interpretation should consider why state constitutional drafters chose different language than the federal Bill of Rights. This distinction matters because state courts can invalidate practices that comply with federal constitutional requirements.