//  6/12/18  //  Commentary

Around the time of the twentieth anniversary of Employment Division v. Smith, I wrote that two historical developments were putting pressure on the Court’s religious free exercise doctrine: LGBT civil rights and the Western reaction to fundamentalist Islam. Recall that Smith, per Justice Scalia, holds that neutral, generally applicable laws do not give rise to free exercise claims. I argued at the time that despite Smith’s unpopularity (both on and off the Court), it would likely survive, in part because the case was useful to the Court while being relatively easy to manipulate. 

Now we are approaching the thirtieth anniversary of Smith and that manipulation is on full display in Masterpiece Cake Shop v. Colorado Civil Rights Commission. Smith is mentioned once in passing in Justice Kennedy’s majority opinion, when referring to the basis for the court’s decision below. Justice Gorsuch’s concurrence  (joined by Justice Alito) opens with a cite to Smith; he mentions that Smith “remains controversial in many quarters” after which he leaves it far behind. The majority finds that Smith does not apply because of religious animus; the concurrence argues that Smith does not apply because Colorado’s public accommodations law has been applied non-neutrally. What is important for my purposes is the ease with which the justices avoid Smith, without rejecting it. A number of them (including Gorsuch) would probably overrule it, but that turns out to be unnecessary.

Indeed, the ease with which the justices are able to avoid Smith confirms one of the chief criticisms of judicially-enforced religious exemptions—the worry that such exemptions will invariably be political, deployed selectively to protect religious groups favored by the Court. When embraced by a conservative court, Smith’s rejection of religious exemptions looked like a doctrine that would mainly gore the ox of religious outliers—the Native American peyote users in Smith. With the rise of LGBT anti-discrimination laws and same-sex marriage, however, the politics has shifted: a faithful application of Smith now harms Christian conservatives. The politics of free exercise exemptions has changed dramatically since 1990.

Masterpiece proves that Smith can be avoided fairly easily. But Smith is still useful for the justices, and particularly now for the ascendant conservative wing. Legislative exemptions are sufficient to do the work that a judicial exemptions regime might have done, especially when the Court interprets them broadly, as in Burwell v. Hobby Lobby Stores, the corporate religious exemptions case. State legislative “First Amendment Defense Acts” also create broad loopholes to general laws that specifically undermine protections for gays and lesbians. So too, speech rights and the Court’s emerging law of expressive association have been broadened to fill-in the space that Smith vacated. Smith can be upheld because it can be selectively applied without much cost.

We will see shortly whether the anti-Muslim shoe drops when the Court decides the travel ban case, Trump v. HawaiiMasterpiece Cake Shop suggests that even a modicum of religious animus should doom a facially neutral law. In Masterpiece, the asserted animus and non-neutrality of Colorado’s process is hardly convincing—the majority opinion and Gorsuch’s concurrence assert that Christian conservatives were targeted by the Colorado Civil Rights Commission, but that’s only because Christian conservatives are more likely to engage in LGBT discrimination. The Court’s justification for looking behind the application of an otherwise neutral and general anti-discrimination law is weak—the rationale seems to be that applying the anti-discrimination law to religious traditionalists (and not to those who are not engaged in LGBT discrimination) evidences bad motive or unequal treatment.

But compare Trump’s travel ban, for which the evidence of anti-Muslim animus is overwhelming. Will the Court find that Trump’s most recent iteration of the ban is valid because the administration now recites a national security reason for its adoption? If I am right about the constitutional politics of religious freedom (and I hope I am not), the Court’s conservative wing will retreat to some analog of “generality” and “neutrality”—tied together with a deference-to-immigration principle. While not applying Smith directly, those justices will nevertheless minimize religious animus when it is applied to Muslims, despite having just magnified such animus when applied to conservative Christians. Smith lives!

Perhaps this is too crude. True, the post-Smith Court has sometimes come to the aid of minority religions. Church of Lukumi Babalu Aye protected Santeria practitioners; Holt v. Hobbs was a victory for a Muslim who wanted to wear a short beard in prison. But the political valence of recent Establishment Clause decisions like Town of Greece v. Galloway and recent Religious Freedom Restoration Act cases like Hobby Lobby suggests a rising Christian favoritism. The Court has endorsed non-neutral (Christian) religious expression in the public sphere. And there is already a lack of symmetry on the free exercise side: legislatures that adopt exemptions for traditionalist Christians who object to same-sex marriage are not also protecting those religionists who have opposite views.

Certainly the triumph of Trump—with his promise to ban Muslims and his flirtation with white Christian nationalism—is a prime example of certain popular attitudes. And, as we now see, free exercise doctrine allows the justices to make a relatively easy end-run around Smith’s generality and neutrality criteria. Smith’s reasoning, however, is still available when the justices want to enforce general laws that have a disparate religious impact (like Trump’s travel ban)—if the Court is willing to overlook obvious evidence of animus. In two cases this Term, we see how free exercise doctrine has become entangled in—and distorted by—the politics of same-sex marriage and the politics of the war on radical Islam.

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