After State Supreme Court Rules Christian Charity Isn’t Religious Because They Serve the Poor, ACLJ Urges US Supreme Court To Overrule “Smith” Test, Restore Vigor to Freedom of Religion

Shockingly, a state supreme court has ruled that a Catholic charity is not a religious charity because serving the poor is not a “typical” religious activity. This bizarre conclusion comes in a decision that relies upon a U.S. Supreme Court case that hamstrung religious liberty and which we have now asked the Supreme Court to overturn.

The ACLJ has asked the Supreme Court to toss the notorious “Smith” test for Free Exercise claims and to replace it with the “history-and-tradition” method used for interpreting other parts of the U.S. Constitution. That’s the gist of our amicus brief filed in the pending case of Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission. Let’s unpack the details.

The First Amendment to the Constitution protects multiple rights, including free speech, freedom of the press, freedom from religious establishments, and the right to petition the government for redress of grievances. And right up front, the First Amendment protects “the free exercise” of religion. This provision is called the Free Exercise Clause.

Historically, the exercise of free speech and freedom of religion often overlap. The person passing out leaflets may be evangelizing. The expressive gathering may be for prayer, worship, or revival. The soapbox speaker may be urging religious fervor.

Legally, however, protection for the free exercise of religion, as such, has had a spotty record. Some Supreme Court cases have invoked the strongest legal protection – so-called “strict scrutiny” – when reviewing infringements on religious practices. But in 1990, the Court took a sudden and unexpected turn against vigorous protection under the Free Exercise Clause. In Employment Division v. Smith, a case involving the religious use of psychedelic drugs (peyote), the Court announced that if a law was “neutral and generally applicable,” the “obligation to comply” would remain even if the law restricted religious practice.

Now, this Smith test made plenty of sense with respect to bad acts. Killing a child is and should be illegal, even if done for a ritual religious sacrifice to Moloch, for example. Consuming narcotics without a prescription and a medical need is rightly proscribed regardless of a claim of a religious right to “get high.” But the Smith test makes less sense when applied to things that are not inherently wrongful, like meeting to pray. The problem is that the Smith test has been understood to let the government trample on religious freedom so long as religion was not singled out.

Meanwhile, the Supreme Court, as we phrase it:

again and again has pointed to the authoritativeness of history and tradition as guides to interpretation of a wide variety of constitutional provisions, including several clauses of the First Amendment.

That is, the Supreme Court kept telling us that if you want to know what a phrase in the Constitution means, you need to look at the history and tradition of that language, which makes perfect sense. Look at Romeo and Juliet. To understand the play’s language correctly, you have to know that “wherefore” means “why” in Shakespearean English. Otherwise, when Juliet asks, “Wherefore art thou, Romeo?” you might erroneously think she is looking for him instead of asking why he has that name.

The same thing goes for the Constitution. To interpret the First Amendment, you have to know what “the freedom of speech” or “the free exercise [of religion]” meant to those who drafted and adopted that amendment. And, as we document in our brief, Justices from the liberal Ruth Bader Ginsburg to the conservative William Rehnquist, and many Justices in between, have invoked the “history-and-tradition” test when interpreting a wide variety of constitutional clauses, including other clauses of the First Amendment (namely, free speech, petition, establishment of religion). Why, then, should the Free Exercise Clause get lesser treatment? It should not, as we argue:

There is no reason “history and tradition” analysis should not govern analysis of the text of the Free Exercise [Clause] as well. . . . [T]he Smith test approach wrongly relegates the free exercise of religion to second-class status. . . . [T]he Smith approach does not even ask what history or tradition might say on the matter.

We elaborate:

[S]etting aside history and tradition severs the Constitution from historical guardrails, thus opening the door to dual interpretive dangers. On the one hand, government could assert newly minted interests (such as “equity” or “diversity” or “climate justice”) as supposed justifications for restrictions on religious practices. On the other hand, religions could claim constitutional protection for religious practices, such as polygamy, that historically would have been regarded as proper targets for the exercise of the police power, regardless of religious motivations.

Our conclusion:

Smith begins at the wrong starting point. Rather than ask what history and tradition have to say about the meaning of the constitutional text, Smith looks woodenly and arbitrarily to the particular characteristics of the restriction in question. Given that foundational misstep, there is no reason to engage in contortionist moves to preserve Smith. The more direct, elegant solution would be to harmonize Free Exercise jurisprudence with this Court’s constitutional law as a whole, clarifying that reference to history and tradition should govern the textual interpretation.

The Catholic Charities Bureau case in which we filed this amicus brief involves a tax exemption issue. The state supreme court in Wisconsin, split 4-3, decided that Catholic Charities – believe it or not! – was not “operated primarily for religious purposes.” The Supreme Court overturning that bizarre ruling itself would be a victory for religious freedom. We’re asking the Court to go further and reset Free Exercise jurisprudence to align with its “history-and-tradition” approach to the rest of the First Amendment. As we put it:

Here, the state supreme court expressly invoked the “neutral” and “generally applicable” test of Smith . . . This Court should forthrightly disavow, or at least modify, adherence to the Smith test, and accordingly reverse the decision below, which relied upon that constitutionally unfaithful test.

The U.S. Supreme Court is likely to hear the Catholic Charities Bureau case sometime this spring and issue its ruling by the end of June. The ACLJ will be ready to respond as needed to protect the freedom of religion.