Some Observations on the State of Religious liberty
As a lawyer, I have learned to take a long-term view of the jurisprudence of the United States Supreme Court, especially when it involves First Amendment “free exercise” of religion issues. The Court’s jurisprudence in this area has had a long and tortured evolution from Sherbert v. Verner (1963) to Justice Scalia’s (regrettable) 1990 decision in Employment Division v. Smith, followed by this week’s decision in Fulton v. Philadelphia, where three Justices asked the Court to expressly overrule Smith. The facts of Sherbert and Employment Division are beyond the scope of this brief article; the Fulton case just decided involved a denial of certain rights by the City of Philadelphia to a Catholic foster care and adoption agency because of the agency’s insistence that the City respect its strongly held religious beliefs. A unanimous Supreme Court held the denial was unconstitutional though it took three separate opinions and 110 pages of dense legal argument to arrive at that result.
I believe that more progress in terms of respecting free exercise of religious rights has been made by the Supreme Court in the last year and half than in the preceding 150 years, as reflected in certain landmark opinions issued by the Court at the end of its 2019-2020 term, the opinions voiding restrictions on the exercise of religious rights during the COVID-19 pandemic culminating in the unanimous decision in Fulton v. Philadelphia.
I write not to discuss the specifics of the Fulton decision, though it appears from the opinion that a number of the facts were peculiar to regulations that the City of Philadelphia adopted, which provided substantial discretion to city officials to grant or deny certain rights. I write to ask that readers be reflective of, and grateful for, the unusual measure of religious liberty that we enjoy in this country.
Justice Alito, in his concurring opinion asking that Employment Division v. Smith be expressly overruled, phrased the broad measures of freedom in concrete examples easily understood by Orthodox Jews.
In Smith, “The Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection…
“There is no question that Smith’s interpretation can have startling consequences. Here are a few examples. Suppose that the Volstead Act, which implemented the Prohibition Amendment, had not contained an exception for sacramental wine. The Act would have been consistent with Smith, even though it would have prevented the celebration of a Catholic Mass anywhere in the United States. Or suppose that a State, following the example of several European countries, made it unlawful to slaughter an animal that had not first been rendered unconscious. That law would be fine under Smith, even though it would outlaw kosher and halal slaughter. Or suppose that a jurisdiction in this country, following the recommendations of medical associations in Europe, banned the circumcision of infants. A San Francisco ballot initiative in 2010 proposed just that. A categorical ban would be allowed by Smith even though it would prohibit an ancient and important Jewish and Muslim practice. Or suppose that this Court or some other court enforced a rigid rule prohibiting attorneys from wearing any form of head covering in court. The rule would satisfy Smith even though it would prevent Orthodox Jewish men, Sikh men, and many Muslim women from appearing. Many other examples could be added.”
The applicability of the pending new regulations on “substantial equivalency” proposed by the New York Board of Regents to our yeshivos and Bais Yaakovs provides another concrete example of what Justice Alito characterizes as the “startling consequences” of Smith. Many other examples abound, including rules proposed by the Biden administration that clash with our deeply held beliefs.
Perhaps Fulton v. Philadelphia was not the appropriate case to overrule Smith; hopefully, a more appropriate case will arise shortly and Justice Alito’s concurrence (joined in by Justice Thomas and Justice Gorsuch) will ultimately become the Court’s new standard for our right to freely exercise our religious beliefs and practices without governmental interference. Until then, Justice Alito’s lament at the conclusion of his Fulton opinion may best summarize our feelings: “The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state … Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”
Samuel Krieger, Esq. is a member of Krieger & Prager LLP, a New York-based law firm which serves as counsel to numerous religious and not-for-profit organizations.