What Does the Lingering Specter of Employment Division v. Smith Mean for Religious Organizations?

By Leo O’Malley

Note: The views expressed in this article are solely those of the author and do not reflect the opinions of any of my past, present, or future employers.

In order to understand the significance of State Religious Freedom Restoration Acts (RFRA), one must first look to the Supreme Court’s oft-maligned decision in Employment Division v. Smith. Although innumerable writings have analyzed and critiqued this opinion, the core holding bears repeating: a neutral and generally applicable law or regulation may incidentally burden religious exercise without triggering strict scrutiny under the Free Exercise Clause of the First Amendment. Said differently, the government may practically burden religious exercise, so long as it does so in an evenhanded fashion, alongside comparable secular conduct, through a law that is neutral and applies equally to everyone. In contrast, laws that include a system of individualized exemptions, permitting equivalent secular conduct, or specifically target religious exercise are not shielded from heightened judicial scrutiny under Smith.

Despite the carveouts mentioned above, the fact remains that Smith gives the government broad latitude to impede religious exercise. As Justice Alito noted in Fulton v. City of Philadelphia, this can lead to “startling consequences.” For example, a ban on wine with no exceptions could prevent the celebration of Catholic Mass nationwide. Laws restricting the wearing of head coverings in courtrooms, or even a ban on the circumcision of infants, could also theoretically be upheld under Smith.

Some members of the U.S. Supreme Court who are generally seen as protectors of religious freedom, most notably Justice Barrett, seem uncomfortable with the prospect of overruling Smith, at least for the moment. Indeed, in recently agreeing to hear the case of St. Mary Catholic Parish v. Roy—a case involving a Colorado preschool funding program—the Court declined to take up the final question presented, which asked whether Smith should be overturned. Some scholars have speculated that Smith may just be undergoing a very slow process of disembodiment, similar to the now-defunct wraith of Lemon v. Kurtzman. Nevertheless, until the Supreme Court finally announces that it has “long ago abandoned” Smith, religious organizations must operate under the reality that this precedent can be used to justify any number of prohibitions on the free exercise of religion.

Both federal and state RFRAs provide a backstop against this severe weakening of the Free Exercise Clause. Because of the broad, bipartisan backlash to Smith, federal and state governments rushed to safeguard religious liberty by statutorily limiting their ability to burden religious conduct. Generally speaking, such laws attempted to reinstate the pre-Smith rule—found in Sherbert v. Verner—that the government may impose substantial burdens on religious exercise only when doing so is the least restrictive means of furthering a compelling governmental interest. These statutes were a response to Justice Scalia’s assertion in Smith that religious accommodation should be left to the political process. To date, 30 states have enacted some form of RFRA. Another 9 have a RFRA-like provision adopted by state court decision. However, in recent years, it has become increasingly apparent that not all RFRAs are created equal.

To establish a baseline, the federal RFRA is instructive. This statute provides that government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless it can “demonstrate[] that application of the burden to the person”:

1.     furthers a compelling interest; and

2.     is the least restrictive means of achieving that interest.

The touchstones of this provision—substantial burden, compelling interest, and least restrictive means—are found in state RFRAs nationwide. However, some RFRAs contain exceptions that seriously endanger religious liberty.  

For example, Indiana passed a RFRA in 2015 that purported to be more protective of private entities, as opposed to just individuals and explicitly religious organizations. However, after backlash from pro-LGBTQ activists and business interests, the state legislature and former Governor Mike Pence enacted an amendment that exempted situations where religiously motivated providers of goods, services, employment, housing, or public accommodations are asked to violate their deeply held beliefs. As a result, the amendment gutted the Indiana RFRA so that the law provides no protection if such an entity is asked to provide custom services for events or causes—such as a same-sex wedding or gender-transition celebration—that directly conflict with its sincere religious convictions. Indeed, because of this exemption, the Indiana RFRA can be viewed as a net loss for religious liberty in the state.

Conversely, some state RFRAs are more protective of religious liberty than the federal version. For instance, the Utah RFRA makes clear that it shields religious exercise not just from government action, but also from persons “other than a government entity” that“ seek to apply or enforce government action against another person that substantially burdens… free exercise.” In other words, the RFRA protects against efforts by private actors to evade RFRA and use the power of government, whether through lawsuits, regulatory action, or otherwise, to undermine religious liberty. The Utah RFRA also grants attorney fees to individuals who successfully enforce the provision against a government entity. These twin protections represent meaningful improvements from the federal RFRA because they address all government action—even when initiated by a private party—and also ameliorate the potential chilling effect of litigation costs.  

In sum, state RFRAs act as a statutory safeguard to protect religious liberty when the federal Free Exercise Clause fails to do so under the Smith framework. The language of these RFRAs is thus of crucial importance. As the Indiana RFRA demonstrates, the mere existence of a state RFRA is not in and of itself sufficient. The unique text—and potential exclusions—matter greatly.  Religious organizations should research these state protections carefully before deciding where to incorporate and operate.

Used properly, state RFRAs represent a crucial facet of religious liberty protection. Until Smith is replaced by a more faithful interpretation of the Free Exercise Clause, state RFRAs, in a very real sense, are the last line of defense against overreaching government regulation of religious exercise.

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