Should Flying Spaghetti Monster worshipers be allowed to wear colanders on their heads in drivers’ license photos? Maybe so. Today, four conservative justices hinted that someone might want to bring them a good Free Exercise case soon so they can unseat a long-standing and long-criticized case called Employment Division v. Smith. That case, penned by Justice Scalia, had in turn uprooted several decades-worth of precedent that had built up a robust bulwark of religious rights under the First Amendment’s Free Exercise Clause.
It’s a funny twist. Liberal justices like Justice William Brennan had built up strong protections under the Free Exercise Clause, such as allowing Amish to pull their children from high school early because of their faith, or allowing Saturday Sabbath worshipers to enjoy certain exceptions to work requirements for unemployment benefits. Then the penultimate conservative justice, Antonin Scalia, dealt a severe blow to those precedents in Smith. Scalia said that religious practices did not merit exemption from generally applicable laws.
Now, the conservative justices want to rethink Smith, while the liberal justices may hang back. Perhaps the shift in the culture wars has caused this parallel shift in jurisprudential alliances. In any case, I think we should welcome reconsideration of Smith.
Scalia’s opinion in Smith raised some legitimate concerns. He argued that if we allowed judges to have a heavy hand in deciding which religious practices deserved special exemptions from the law and which did not, then judges would inevitably engage in subjective judgment calls and descend into the very parochialism that the First Amendment is designed to thwart. He also worried that allowing exemptions from generally applicable law would court anarchy—we would have a legal code peppered with holes for a thousand individualized religious beliefs and practices. Both are legitimate concerns.
Smith did prompt a strong legislative response. Congress and quite a few states thereafter passed Religious Freedom Restoration Acts (RFRAs) that basically revived the pre-Smith law. But legislatures can and do exempt some laws from RFRAs, and many states do not have them.
My primary issue with Justice Scalia’s Smith opinion is that his worry about subjective judgment calls seems to prove too much. Judges are called upon to make these kinds of sensitive and controversial decisions all the time. We rely on things like tenure and salary protection to shelter their independence and impartiality as much as we can, but these kinds of difficult decisions arise in innumerable other contexts. I would prefer a robust and imperfectly enforced Free Exercise Clause to one that does almost nothing at all.
Likewise, the concern about courting anarchy may be overblown. Laws and religious practices usually do not clash in a fundamental way, and under the pre-Smith “compelling interest” test, legislators can still forbid child sacrifice while allowing Muslim police officers to keep their beards. Plus, freedom of speech and many other rights already require exceptions to the scope of otherwise legitimate laws—they just can’t be applied in certain circumstances. The Free Exercise Clause is not unique in that way.
If the Court does confront Smith, it may also have to deal with the Flying Spaghetti Monster problem. That is—the Court may have to address a question which it has mostly avoided: what is a “religion” under the First Amendment. Does the Church of the Flying Spaghetti Monster count? Should Pastafarians be allowed to wear colanders on their heads in drivers’ license photos while everyone else has to go bareheaded? What about the Church of Diego Maradona, a real church dedicated to the Argentine soccer legend? Clearly, asking a court to define a “religion” raises the same concerns of parochial judgment calls that drove the decision in Smith. But maybe the answer is to let them all in, with perhaps just a low-threshold sincerity requirement. Beyond the occasional colander-clad guy in the DMV line, we haven’t seen a huge number of people adopting faux beliefs just so they can get a religious exemption for smoking dope. But then, there is an International Church of Cannabis that would surely see a surge in conversions if Smith is overturned.