After the Supreme Court wraps up its pending business on Thursday, there will be plenty to discuss and debate about a term that seems to have confounded many people’s expectations. I’ll leave that conversation for the coming days. For now, I want to explore one of the week’s overlooked developments for what it might tell us about what happened beneath the surface on a subject of great import this term.
That subject is religion, to which the court’s new majority is ever more deferential.
On Monday, the court denied review in the case of Ricks v. State of Idaho Contractors Board. Filed on July 10, 2019, the petition had sat on the court’s docket for nearly two years. The denial finally came without comment, appearing simply as one line on a list of dozens of cases the justices disposed of on Monday.
As a building contractor, George Ricks was required by Idaho law to register with the state in order to practice his profession. The registration form requires applicants to include their Social Security number. Mr. Ricks refused, asserting a religious objection to submitting his Social Security number to the government. Denied his registration, Mr. Ricks, without a lawyer, filed a lawsuit in Idaho state court. He claimed that the First Amendment’s Free Exercise Clause entitled him to a religious exemption from the Social Security requirement. Not surprisingly, he lost.
Mr. Ricks’s appeal to the Supreme Court would have elicited no more than a shrug and a speedy denial but for two things. One was that he was now represented by the Becket Fund for Religious Liberty, a prominent religious rights litigating organization that has won many recent Supreme Court victories on behalf of religious believers seeking exemptions from government regulations.
The second reason the case got more than a second look from the justices was the question the Becket Fund asked the court to decide: Whether it “should revisit its holding in Employment Division v. Smith that the Free Exercise Clause generally requires no religious exemptions from laws that are neutral and generally applicable.”
This was a question for which at least some justices had been waiting eagerly for an opportunity to answer in the affirmative. Employment Division v. Smith, decided in 1990, before any of the current justices were on the court, was unpopular with many religious groups but was anathema to the religious right in particular, notwithstanding the fact that the majority opinion was written by Justice Antonin Scalia.
The question in that case was whether a state could deny unemployment benefits to a worker fired for using illegal drugs for religious purposes. Justice Scalia found that the court’s decisions had “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”
Such an approach, he added, “must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”
As conservative Christians grew in power both in American politics and on the Supreme Court, calls to overturn the decision reached a crescendo at just about the time the Ricks petition arrived at the court.
In fact, several cases arrived within a two-month period in 2019 asking the justices to reconsider the Smith decision. One was another Becket Fund case, Fulton v. City of Philadelphia, in which a Catholic social service agency sought to claim a religious exemption from a nondiscrimination law.
The agency, under contract with Philadelphia to find foster parents for children in the city’s care, refused to consider same-sex married couples. When the city refused to renew the contract, which included the nondiscrimination requirement, the agency sued. The lower courts, bound by the Smith decision, ruled for the city. The Becket Fund asked the court to overturn Smith, just has it did in the Ricks case.
The court agreed to hear the Philadelphia case and put Ricks on hold. The majority opinion by Chief Justice John Roberts neither overturned Smith nor reaffirmed it. In ruling for the Catholic agency, the chief justice found it unnecessary to decide Smith’s fate one way or the other.
As the chief justice interpreted Philadelphia’s standard foster-care contract, the city’s administrator had the power to grant exemptions from the nondiscrimination requirement. “The creation of a formal mechanism for granting exceptions renders a policy not generally applicable,” he wrote. So the rule in Smith under which a “neutral law of general applicability” applies to everyone including religious objectors, was simply irrelevant to the Fulton case.
Instead, Chief Justice Roberts invoked a much less well-known case, a 1993 decision with the unwieldy name Church of Lukumi Babalu Aye, Inc. v. Hialeah. This decision struck down a city ordinance that banned animal sacrifice, a practice engaged in by followers of Santería, an Afro-Caribbean religion that was the target of considerable public animosity. Because the ordinance did not apply to other means of slaughtering animals or disposing of dead ones, the court held that the city of Hialeah violated the Free Exercise clause by placing a heavier burden on a religious practice than on similar secular practices, like hunting or fishing.
The facts of the Lukumi case were so exotic, and the religious animus to which the court responded so unmistakable, that for years the decision was basically ignored. Only in recent years has it begun to be cited as lawyers for the religious right discovered its utility and receptive judges enlarged its boundaries to embrace not only overt discrimination but also readily explained differences in treatment between religious and secular activities.
A newly robust Lukumi decision found its way into recent rulings overturning restrictions on communal worship during the pandemic. Lukumi has now come to stand for the idea that the government needs a compelling reason for making any distinction between religion and nonreligion if the burden on religion can be described as even slightly heavier.
And what of the fate of the Ricks case? On the day Fulton was decided, the Becket Fund filed a supplemental brief in the case, urging the justices to grant review. “Fulton only underscores the need for this court to revisit Smith, and this case presents an ideal vehicle to do so,” the brief said.
One possible reason the court rejected that advice is that the justices were wary of jumping back so quickly into a debate over Smith after having just spent seven months fighting over the Fulton case. While much commentary on the Fulton decision has emphasized its 9-to-0 outcome, the separate opinions signed by Justices Samuel Alito, Neil Gorsuch and Clarence Thomas make clear that the justices were deeply and even angrily split over what to do. There are plenty of other religion cases in the pipeline, any of which the court may grant in the coming months if not days, that don’t require a confrontation with Smith.
That’s a plausible reason for denying the Ricks case, even a likely one, but I have a different theory. It’s that there is no longer a reason for the court to waste time and energy fighting over Employment Division v. Smith. The elevation of the Lukumi decision into what amounts to a “most-favored nation” clause for religion — requiring that religious activity must be treated at least as well as any secular activity deemed comparable — makes Smith’s barrier against religious exemptions so easily evaded as to be irrelevant.
That’s not the world George Ricks was in when he brought his pro se lawsuit against the Idaho Contractors Board in 2016. It’s the world we’re in now, and I invite those who think this was a Supreme Court term in which nothing much happened to take another look.
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