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.   

The Fortnight for Freedom - From Kim Colby

I want to welcome Kim Colby as my guest blogger for the next two weeks to help celebrate The Fortnight for Freedom.  

Kim is Senior Counsel at the Center for Law & Religious Freedom, where she has worked since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases that were heard in the United States Supreme Court.  She was involved in congressional passage of the Equal Access Act in 1984. With Kim's long history of service in the area of religious liberty, I thought it appropriate that she post for me during the Fortnight of Freedom. From Kim:

The Fortnight for Freedom begins today.   Please thank God that America has been a refuge for those seeking religious liberty for hundreds of years.  Specifically, thank God for the Supreme Court’s January decision protecting churches’ right to employ ministers without governmental interference (the Hosanna-Tabor case).   Please pray for Supreme Court Chief Justice John Roberts, who wrote the unanimous opinion, and for his work on the Court.  (We will pray for each Justice in the coming days.)

The “Fortnight for Freedom” is a national campaign of teaching, witness, and prayer against the abortifacient and contraceptive mandate and in favor of religious freedom. -MS