Fortnight4Freedom: Smith is the Problem

From Kim Colby, Senior Counsel at the Christian Legal Society's Center for Law & Religious Freedom, our guest blogger during the Fortnight for Freedom:

Please pray that the Court will overturn the Smith decision.  Please also pray for Justice Scalia and his work on the Court.

The problem is Smith.  Religious liberty has always been a fragile proposition.  But it moved to the top of the list of endangered constitutional rights with the Supreme Court’s 1990 decision in Employment Division v. Smith. 

Pre-Smith, the Court allowed religious citizens or religious institutions an exemption from the application of a neutral law of general applicability, unless the government could demonstrate a compelling interest, unachievable by less restrictive means.  In other words, even if the government prohibited the sale of wine in general, it must permit churches to purchase wine for use in Communion services.

In Smith, the Court, in an opinion written by Justice Scalia, removed this religion-protective test.  Religious citizens and institutions no longer are presumed to be exempt from neutral laws of general applicability. 

Over the past two decades, several loopholes have been found in the Smith decision.  But it’s why the government could argue to the Court a few months ago in Hosanna-Tabor that the government could review churches’ employment decisions under the nondiscrimination laws.  Fortunately, the Court distinguished Smith and protected churches’ employment decisions.  But it’s also why the Administration claims it can force religious employers to provide insurance coverage of contraceptives and abortifacients for employees, despite the employers’ religious objections.