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Like many social conservatives, especially Christian ones, I spend a lot of my time reading and writing about religious freedom, particularly on how it might be affected by the legalization of same-sex marriage and the campaign for “gay rights” more generally. Yet at the same time, I harbor doubts about the position we are staking out.

You see, I sometimes wonder whether Justice Scalia’s majority opinion in Employment Division v. Smith may have been correct. 

As you probably know, Employment Division v. Smith involved two counselors at a private drug clinic in Oregon: Alfred Smith and Galen Black. In addition to being drug counselors, Smith and Black were members of the Native American Church, a “Native American religious movement,” which originated in the late nineteenth century and has an estimated 250,000 adherents. The Church mixes “traditional and Christian beliefs” and is best known for its sacramental use of peyote, a hallucinogenic.

If you’re wondering how Smith and Black were able to reconcile ingesting peyote with their day jobs as drug counselors, you're not alone— their employer, who ultimately fired them, wondered that too. The duo applied for unemployment benefits and were turned down because they were fired for “work-related misconduct.”

They appealed the denial on the grounds of religious freedom. After several rounds of appeals, the Oregon Supreme Court found that the ban on the sacramental use of peyote violated the First Amendment’s Free Exercise clause. Oregon appealed to the Supreme Court of the United States.

At the time that Employment Division was argued in 1989, the controlling case was Sherbert v. Verner, a 1963 decision involving a Seventh-Day Adventist whose employer fired her for refusing to work on Saturdays.

In Sherbert, the Court ruled that a substantial burden on a person’s free exercise rights could only be justified by a compelling governmental interest that was furthered in the least restrictive means possible.

Justice Scalia, writing for the majority in Employment Division v. Smith, didn’t employ the Sherbert test. Instead, he all-but-overturned Sherbert by limiting it to a narrow factual context. Elsewhere, in instances of what he termed a “neutral law of general applicability,” the government didn’t need to show a compelling interest. All it had to show was that religious behavior wasn’t specifically targeted by the law. (For an example of what such targeting might look like, see Church of Lukumi Babalu Aye v. City of Hialeah.)

According to Scalia, the Free Exercise clause doesn’t create an exemption to “neutral laws of general applicability,” such as Oregon’s drug laws. As Scalia wrote, “To permit [such an exemption] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Scalia’s opinion not only denied Smith and Black a right to ingest peyote, it had unintended consequences that went far beyond the weird facts—we are talking about Oregon, after all—behind the decision.

For instance, it made the work of Prison Fellowship more difficult than it had been. Wardens and corrections officials were freer to limit access to prisoners and religious activities by prisoners so long as the tightened access rules were generally applicable. They no longer felt obligated to accommodate prisoners and Christian volunteers. Administrative convenience trumped religious freedom.

That’s why Chuck Colson and Prison Fellowship were among the earliest supporters of the Religious Freedom Restoration Act, which, in essence, codified Sherbert. It’s why Chuck was furious when the Court, in Boerne v. Flores, ruled that RFRA, while applicable to the federal government, was inapplicable to state and local governments.

The overreach of Scalia’s majority opinion is why, in the aftermath of Boerne, Congress by unanimous consent passed, and President Clinton signed, The Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. It’s why more than a dozen states enacted their own version of RFRA.

Given the potential impact of Scalia’s decisions, the legislative response made sense. Yet, I still cannot help but wonder if Scalia wasn’t correct about the danger of “[permitting] every citizen to become a law unto himself.” I wonder because I can’t help but think about the differences between 1963, when Sherbert was decided and 1990, the year that Employment Division was.

Until relatively recently, American religion came in four basic flavors: Catholic, Protestant, Jewish, and Sectarian (by “Sectarian” I mean religious minorities such as Jehovah’s Witnesses, the Amish, Seventh-Day Adventists, and, at least during the nineteenth century, Mormons.) While religious pluralism had always been a characteristic of American life, it was almost entirely a pluralism within a Protestant context. Whatever the theological differences between Methodists and Baptists or Presbyterians and Episcopalians, they were, especially as regards their relationship to the larger society, much more alike than different.

There’s a reason Free Exercise litigation largely involved the folks I dubbed “Sectarians”: their practices were more likely to fall outside the mainstream of what Americans thought of as religious practice. They were more likely to make demands on the majority that were extraordinary in the original sense of that word.

Over the years, our legal system learned how to accommodate these demands without turning every citizen into a law unto himself. For instance, Jehovah’s Witness weren't required to salute the flag or say the Pledge of Allegiance; the Amish weren’t required to send their kids to school, etc. It helped that most of these groups were relatively small and that the one that wasn’t, the Mormons, dropped its most controversial practice and became more or less mainstream.

Then things began to change. The Age of Aquarius begat the New Age—actually the history of what we dub “New Age” beliefs is more complicated but the stuff didn’t really take off until the 1970s—and we became, in Ross Douthat’s words, a “nation of heretics.” Institutional churches went into decline and personal and often idiosyncratic belief systems took their place. We also went from being a country with virtually no Islamic presence to being a country with a substantial one—between two and five million.  

Now, the potential for conflict between religious freedom and laws of general applicability has increased exponentially. More to the point, the potential for litigation has increased exponentially. I can’t help but suspect that the Court was looking for a way to foreclose this kind of litigation.

This is especially true because the last thing the Court or any sane person wants is judges determining whether a particular religious claim is legitimate or sincere. As Scalia, quoting Hernandez v. Commissioner, made clear, “[it] is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those creeds.”

Thus, while someone who claims that his faith in the Flying Spaghetti Monster exempts him from following zoning laws or paying property taxes on his Pastafarian “temple” is unlikely to prevail in court, he is entitled to his proverbial day in one.

This is not entirely hypothetical. A Nebraska prisoner, citing RLUIPA, sued that state’s D.O.C. over the right to wear the religious garments required by his Pastafarian faith—a pirate costume. Since prisoners, by definition, have lots of time on their hands and can file in forma pauperis, there is no practical limit to their attempts to play the religious angle, especially since judges aren’t free to call B.S.

You may conclude that the prisoner’s Pastafarianism is a “parody” of a real religion, like the Nebraska D.O.C. did. But it’s a “parody” that, under RLUIPA, will be litigated. Nebraska may have to argue that not being able to wear a pirate costume does not constitute a “substantial burden” on the practice of a faith that was made up nine years ago as a smart-alec response to the controversy over teaching intelligent design in Kansas schools.

A lawyer from the Nebraska Attorney General’s office may have to tell a judge why a state located smack dab in the middle of the North American continent has a compelling interest in not allowing prisoners to go around dressed up as pirates. Even if he prevails on that point, he may have to come up with a less restrictive alternative, such as allowing the prisoner, Stephen Cavanaugh, to walk around with a stuffed parrot on his shoulder.

Now, obviously, it is wrong to compare the Pastafarian prisoner with the people at Elane Photography or at Masterpiece Cakeshop in Lakewood, Colorado. But it is, at the very least, a challenge to articulate a standard that both protects people like these folks and, at the same time, does not open the courthouse door to the Stephen Cavanaughs of the world.

Or, to raise the stakes a little, why wouldn’t a free exercise expansive enough to protect Elane Photography not also protect, say, a Muslim cab driver from having to pick up immodestly-dressed female passengers or passengers whom have obviously been drinking?

If you respond “it should” then you have created what Scalia was rightly concerned about: a religiously-based individual right not to comply with laws you disagree with. Emphasis on the “individual.” Since judges cannot question “the validity of particular litigants’ interpretation” of how his or her faith applies to the particular law in question, potentially anything and everything is challengeable.

Again, the issue is not who would or should prevail in court; it’s that every rule and regulation that might potentially offend someone’s religious sensibilities will be litigated. In a pluralistic and litigious society such as ours, I can see why Scalia got nervous.

Don’t get me wrong. I am happy that RFRA was around to protect Hobby Lobby and Conestoga Wood Products. The HHS mandate was an egregious exercise in naked power that not only violated people’s consciences but rubbed their faces in the violation, as well.

I’m just not sure about how far I’m prepared to take the position we’re espousing. That’s why my doubts are likely to remain with me for some time.

Roberto Rivera is a fellow at the Colson Center for Christian Worldview and a writer for Breakpoint

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