Late last week, the U.S. Supreme Court rejected an emergency application from the State of Alabama, which had asked the Justices to lift a stay on the execution of Willie B. Smith III. The U.S. Court of Appeals for the Eleventh Circuit issued that stay because Alabama planned to exclude Smith’s pastor from the execution chamber in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal statute that forbids governments from substantially burdening prisoners’ religious exercise unless doing so is the least restrictive means of furthering a compelling interest. In a concurrence in the order denying Alabama’s requested relief in Dunn v. Smith, Justice Kagan—joined by Justices Breyer, Sotomayor, and Barrett—explained that while Alabama surely has a compelling interest in prison security during an execution, experience in other jurisdictions and even in Alabama itself showed that wholesale exclusion of clergy from the execution chamber was an excessive measure and thus a RLUIPA violation.
The exact SCOTUS vote in Dunn v. Smith is unknown. Chief Justice Roberts and Justices Thomas and Kavanaugh noted that they would have ruled for Alabama, but the Court did not record whether Justice Alito, Justice Gorsuch, or both joined with the four concurring justices to comprise a 5-4 or 6-3 majority. In either event, the fact that Justice Barrett and at least one other generally conservative justice joined with the three liberal Justices might be viewed as evidence that the Court regards cases involving religious liberty claims as posing legal questions that transcend any individual justice’s particular values.
And indeed, religious liberty cases do pose difficult legal questions that ought to be decided by some means other than asking which side elicits more sympathy from the justices. Unfortunately, the Court has increasingly seen such cases through an ideological lens. Indeed, on closer examination, Dunn v. Smith at least partly confirms that disturbing trend—which implicates a better-known case involving another respondent named Smith.
The Other Smith and its Aftermath
Two Native Americans were fired from their government jobs in Oregon after they ingested peyote as part of a religious ritual. They argued that the firing violated their right to free exercise of religion, and the case eventually worked its way to the U.S. Supreme Court, which ruled against them. Writing for the majority in the 1990 case of Employment Division v. Smith, Justice Scalia opined that because Oregon law forbade all peyote use, its application in a case that happened to involve sacramental use raised no free exercise issue. The First Amendment, as construed by the Smith Court, is a right not to be singled out for disadvantageous treatment based on religion; it is not a right to exceptions from what have come to be known as neutral laws of general applicability.
Many people thought the Smith rule callous. Thus, Congress enacted legislation—including RLUIPA and the Religious Freedom Restoration Act (RFRA)—that sought to displace it. Although the Supreme Court invalidated RFRA as beyond congressional power insofar as it applied to state and local governments, it remains valid as a limit on federal action. Likewise, lower courts have uniformly upheld RLUIPA as a valid exercise of Congress’s powers to attach conditions to federal spending. (RLUIPA also invokes congressional power to regulate foreign, interstate, and tribal commerce, but courts have focused on the spending power.) So too, there are many state statutes and state court interpretations of state constitutional provisions that, like RFRA and RLUIPA, require government to justify substantially burdening religious freedom, even when doing so pursuant to neutral laws of general applicability.
Accordingly, for over two decades, the United States has had two somewhat distinct legal regimes for evaluating religious freedom claims: where the Smith rule governs, free exercise is a mere anti-discrimination principle; where RFRA, RLUIPA, or a state law equivalent governs, the compelling interest test applies to all substantial burdens on religious exercise.
An Ideological About-Face
Meanwhile, an ideological reversal of sorts has occurred. Smith divided the justices on roughly right/left lines. To be sure, generally liberal Justice Stevens joined the majority and moderately conservative Justice O’Connor disagreed with the rule announced in the case (while agreeing with the result on other grounds), but for the most part, conservative justices comprised the majority and liberals comprised the dissent. Most liberals favored and most conservatives opposed reading the First Amendment to require some religious exceptions to neutral laws of general applicability.
In the ensuing years, however, we see the opposite alignment. Smith involved religious claimants who were members of a long-persecuted minority group, thus triggering liberal sympathy for (and perhaps conservative skepticism of) minority rights. By contrast, in recent years, more traditional religious conservatives have asserted claims for religious exceptions to policies favored by liberals—such as contraception access and anti-discrimination protection for LGBTQ+ persons.
The new conservative enthusiasm for religious exceptions has taken various forms. A conservative majority of the Court has construed RFRA broadly to cover for-profit corporations. The Court (joined in this endeavor by more liberal Justices Breyer and Kagan) has found the Smith rule inapplicable to a broad swath of cases in which religious institutions claim a “ministerial exception” to general laws. And two years ago, Justice Alito, joined by three conservative colleagues, strongly suggested his openness to overruling Smith. Fulton v. Philadelphia, which was argued in November, expressly presents the Court with an opportunity to do just that.
Indeed, it can be argued that in the COVID-19 cases, the Court has de facto already overruled Smith. Since last spring, the Justices have issued statements in four cases in which houses of worship objected to the application of public health restrictions—two from California and one each from Nevada and New York. All reached the Court in an emergency posture, without full briefing and oral argument. Thus, none should have offered an opportunity to change the prevailing constitutional rule. And yet that appears to be what has happened.
In the first California case and the Nevada case, Chief Justice Roberts joined his more liberal colleagues in sustaining public health measures, even as the Court’s most conservative justices voted to invalidate them. The conservatives’ reasoning was dubious under Smith. After all, houses of worship were generally subject to fewer restrictions than comparable secular gatherings, like concerts and lectures. Nonetheless, these justices sought to invalidate the restrictions on houses of worship because they were stricter than those applicable to secular venues such as grocery stores, offices, and pharmacies. Officially, they reasoned that states were discriminating against religion by treating any secular activity more favorably than any even remotely comparable religious activity. But because that is not how the law typically defines discrimination, the conservatives’ votes in the COVID-19 cases are probably better viewed as simply providing religious exceptions contrary to the Smith rule.
Meanwhile, since Justice Ginsburg’s death and the appointment of Justice Barrett, a majority of the Court has sided with houses of worship challenging COVID-19 restrictions. Indeed, in the second California case, even Chief Justice Roberts joined in the decision to override the strictest public health restrictions (although he left in place a restriction on indoor singing). The Chief Justice wrote that California’s conclusion “that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
That observation seems legitimate on its face, until one recalls that under Smith the state has no special obligation to appreciate or consider religious interests; its obligation is simply not to discriminate. Or, as Professor Leah Litman explained, the Chief Justice’s complaint is “not about whether the regulation treats non-religious and religious institutions the same. It is instead about the extent of the burden on the religious institution.” The Court might or might not formally overrule Smith in Fulton or some future case, but it has informally abandoned Smith already.
Dunn v. Smith Should Have Been Unanimous
Yet if a majority of the Roberts Court has already abandoned Smith without formally overruling it, if conservatives now favor religious exceptions, how do we explain the fact that at least three conservative Justices—the Chief Justice, Thomas, and Kavanaugh—were unwilling to allow a religious exception for the other Smith, Willie B. Smith III? How can those Justices (and possibly one of Justices Alito and Gorsuch too) find that there is a constitutional right to religious exceptions when the nominally-still-operative constitutional rule rejects such exceptions, but reject a religious exception in a case in which a federal statute, RLUIPA, clearly authorizes it?
The three justices who definitely dissented in Dunn v. Smith provide us nary a clue as to their thinking. Justice Thomas did not explain himself at all, simply noting that he would grant Alabama’s application for relief. Justice Kavanaugh, joined by Chief Justice Roberts, wrote a short dissent, but it is wholly unsatisfactory. Here is the entirety of Justice Kavanaugh’s substantive analysis: “Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.”
With due respect, that is a non sequitur. The fact that the policy is non-discriminatory would be enough to sustain it under Smith, but of course RLUIPA provides protection for religious practices even when they are burdened by non-discriminatory policies. Meanwhile, Justice Kavanaugh applies only half the RLUIPA test. It is not enough that the state policy serve a compelling interest—which Justice Kagan and the majority also acknowledge. The policy must, in addition, be “the least restrictive means of furthering that compelling governmental interest.” Justice Kavanaugh does not say, nor is it true, that Alabama can advance its interests in safety, security, and solemnity only by excluding clergy from the execution chamber.
We are thus left with a puzzle. At least three justices have lately been applying an upside-down version of the constitutional and statutory protection for free exercise of religion—finding exceptions where the doctrine does not provide for them and refusing to apply a federal statute that expressly requires them. Why?
Perhaps the Chief Justice and Justices Thomas and Kavanaugh have some reason to invert free exercise law, but if so, they ought to articulate it. Otherwise, we are left with the impression that they believe in robust religious freedom only for those with whom they empathize.