Well, this is interesting. I was inspired to write this posting by the Arizona “no cakes for gays” law, but I didn’t get around to writing it until that had been consigned to the scrap heap of really bad legal ideas. So I wrote it anyway, with an opening apology for it not being quite as timely as I’d hoped. And now, it turns out it’s very timely, because this is also the relevant history of the legal principles behind the “Hobby Lobby” contraception cases, which are being argued in the Supreme Court today. So perhaps this will be interesting to anyone who’s following that.
For starters, the legal principle we’re discussing here is the Free Exercise Clause of the First Amendment. Among other things, the First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That’s two different clauses. There’s the so-called Establishment Clause, the bit before the comma, which is what prevents Congress from establishing a state religion, and arguably prevents government entities from putting up crosses and copies of the Ten Commandments and so forth. And then there’s the part which would read “Congress shall make no law prohibiting the free exercise of religion” if they weren’t cramming two related but different concepts into the same sentence. That’s the Free Exercise Clause. That’s what all these cases are ultimately about.
(Brief digression: but it just says that Congress can’t make laws like that (I hear you cry). So does that mean that state governments can make laws like that, since they’re not Congress? No, it doesn’t. This has to do with a principle called “incorporation,” which basically says that the Fourteenth Amendment makes most of the limitations on government power in the Bill of Rights applicable to state governments in addition to Congress. More on that some other time, maybe. For now, just trust me: the First Amendment limits the power of state governments exactly the same way it limits the power of the federal government.)
So, clearly, the government can’t make a law that says “Nobody can go to a mosque and participate in a Muslim service.” That would obviously be prohibiting the free exercise of religion. That one’s easy. But suppose the city passes an ordinance saying that everybody has to rake the leaves on their lawn every Saturday. No problem there, right? Well, maybe there is. What if I’m an orthodox Jew, and my religion forbids me to work on the Sabbath? The ordinance wasn’t designed to prevent me from exercising my religion; it was designed to make everybody’s yard look nice. But it has the effect of interfering with my religious practice. That’s the sort of problem these cases address.
The Supremes have gone back and forth on this issue for almost as long as there have been Supremes. The issue came up in 1878 over the question of whether a Mormon could be punished for bigamy, and they said yes to that in a case called Reynolds v. United States, but after that, there was a long, long period in which they invariably sided with the party who claimed that his religious freedom was being trampled. For example, in Wisconsin v. Yoder in 1972, the Supremes held that Wisconsin’s laws requiring compulsory school attendance couldn’t be applied to Amish kids, and in Frank v. Alaska in 1979, they held that an Athabascan Indian from the Alaskan boonies couldn’t be punished for shooting a moose out of season because his religion required him to serve moose meat at a funeral ceremony.
But then the tide turned the other way. The modern history of the Supreme Court’s rulings on this sort of thing starts in 1986 with a case called Goldman v. Weinberger. Weinberger was Caspar Weinberger, who was Secretary of Defense at the time. Goldman was a psychiatrist in the Air Force, and he had run afoul of an Air Force dress code which prohibited active-duty personnel from wearing hats indoors. You can probably see it coming: Goldman, an observant Jew, got disciplined for wearing a yarmulke. Is this a Free Exercise problem? No, said the Supremes: “the First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations.” 5-4 decision, with a dissent by O’Connor of the sort typically described as “blistering,” on the theme of “Srsly? You’re saying that the Air Force’s need for uniformity trumps the First Freakin’ Amendment?”
But that was just some Air Force regulation, and people generally understand that the military has a lot of silly rules that don’t apply to the general public and that’s ok. So Goldman didn’t stir up a lot of controversy. The one that did came along four years later, in 1990: Employment Division of Oregon v. Smith. Albert Smith worked for, of all things, a drug rehab center, and they fired him because they found out that he was using peyote. He applied to the state of Oregon for unemployment, and they turned him down because he’d been fired for work-related misconduct. But the thing is – again, you probably saw this coming – Smith was Native American, and he used peyote as part of his religious practice. So the reason he didn’t get his unemployment payments was that he’d done something that his religion required him to do. Any problem with that?
Nope, said Scalia, writing for one of those 5-4 majorities we so often see in controversial cases. The line he drew was based on the intention behind the law: if the burden on religious practice is not the object of the law, but merely an incidental side effect of it, then no problem. Scalia effectively overturned some earlier Supreme Court cases which said that when a law interferes with religious practice even accidentally, there has to be a “compelling government interest” in the law, which is a fancy way of saying that the government had better have a damn good reason for making a law like that. Smith says no to that: if the government wants to make a law which just happens to make it illegal for some people to practice their religion, that’s fine and dandy as long as the government wasn’t trying to stop anyone from practicing their religion. No compelling interest needed.
Well, that one raised a lot of hackles, including Congressional hackles. In 1993, Congress passed a law grandiosely entitled the Religious Freedom Restoration Act, which claimed to restore the “compelling government interest” standard. It said that governments, both state and federal, can’t make laws that just happen to unintentionally outlaw religious activities, unless there’s one of those “compelling government interest” things, and the law is the way of achieving that interest that’s as minimally burdensome to religious practice as possible. That wouldn’t make it impossible to pass a law like the one that prevented Albert Smith from getting his unemployment checks, but it would make it enormously difficult.
At about the same time, also in 1993, the Supremes decided the case with my very favorite name of all Supreme Court cases ever: Church of the Lukumi Babalu Aye v. City of Hialeah. This has nothing to do with “I Love Lucy”; Lukumi Babalu Aye was a Santeria church, and Hialeah is a city in Florida, just outside Miami. The law that was being challenged in the case was a Hialeah city ordinance that prohibited the unnecessary or cruel killing of any animal in the city limits. And – see this one coming? – a big part of Santeria religious practice is the sacrifice of chickens. Oh-oh.
Well, that one was too much even for the Supremes, who concluded that this law actually was intended to prohibit religious practices. Not to put too fine a point on it, Kennedy, the author of the opinion, felt that the city council had adopted this regulation specifically because the good people of Hialeah weren’t too excited about having a Santeria church in their town. Kennedy noted the interesting coincidence that this ordinance was adopted about two months before the church got all its zoning approvals, and that Hialeah was perfectly fine with fishing and killing rodents in homes and other things that involved killing animals but didn’t involve unfamiliar African religions. So Hialeah lost; the ordinance was struck down as unconstitutional.
It’s impossible to miss the point that the Supremes arrived at this decision at exactly the same time that Congress was going ballistic over Smith, which leads some of us to wonder if the Supremes were trying to be conciliatory, but the facts, at least the way Kennedy describes them, do seem pretty egregious. On the other hand, the Supremes decide which cases they want to take, so maybe they took this one specifically because it would give them an opportunity to show that they meant what they had said in Smith about how it’s not ok for laws, even ones that don’t specifically mention religion, to intentionally target religious practice. Who knows. Anyway, that’s Lukumi Babalu Aye. Isn’t that a great name?
So now it’s 1993 and RFRA, as the Religious Freedom Restoration Act is known to its friends, is now the law of the land. (Pronounced “RIFF-ruh.”) That, you’ll remember, is the “government needs to have a damn good reason for laws that restrict religious practice” law. But RFRA was not long for this world, at least as far as state laws are concerned.
Fast forward to 1997. A Catholic church in the city of Boerne, Texas (I have no idea how “Boerne” is pronounced) wants to expand its building. But the existing building is a designated historic building in a designated historic district, and there’s a city ordinance saying that buildings like that can’t be enlarged or remodeled or whatever, so the city denies the building permit. The archdiocese sues the city, claiming, among other things, that this is a RFRA violation, because the government doesn’t have a sufficiently compelling reason to deny the permit, and the denial restricts the church from practicing its religion. And the case of City of Boerne v. Flores goes to the Supreme Court, Flores being the name of the local archbishop.
Pretty weak argument, say I. The lack of a building permit wasn’t stopping the church from holding mass or communion or confession or any actual religious practice; it was stopping them from expanding their building, which would have allowed them to have more parishioners, and thereby bring in more money. That’s not, in any but the most cynical sense, the “exercise of religion.” But that’s not where the Supremes went with this one. Remember how I mentioned, way up toward the top of this article, that there’s this “incorporation” principle that says that most of the Bill of Rights applies to state governments too, because of the Fourteenth Amendment? Well, it turns out that principle doesn’t apply to federal laws, just to the federal Constitution. And that’s the main holding of Flores: Congress doesn’t actually have the authority to decide what laws state governments can only make if they have a damn good reason to. That’s a question of interpreting the Constitution, and that’s the Supreme Court’s job (says the Supreme Court). Therefore, to the extent that RFRA purports to do that, it’s unconstitutional. Basically, Flores amounts to a message from the Supreme Court to Congress saying “Hey, what has eighteen thumbs and is the only institution within the federal government that has the right to say what the Free Exercise does and does not prohibit? These guys.”
However, RFRA continues to apply to the federal government, because Congress is at liberty to make laws telling itself what laws it can and can’t make. That point was established by Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal in 2006. This was somewhat similar to Smith: a Brazilian church in New Mexico imported a big stash of ayahuasca tea from Brazil in order to use it in some sort of ceremonial way, and it turns out that ayahuasca tea contains an illegal psychedelic called DMT, which is probably why it’s used in religious ceremonies. Customs – a federal agency – seized the tea, and the church sued in federal court to get it back, claiming that the law against DMT prevented them from practicing their religion, and that therefore, under RFRA, the government needed one of those “compelling government interest” things in order to justify enforcing the law in their case. The Supremes agreed, and further agreed that the government – the federal government – didn’t have one. So the Centro Espirita got its psychedelic tea back.
What that means is that RFRA isn’t entirely dead: it still prevents the federal government from making laws that have the side effect of interfering with religious practice without a “compelling” reason for doing so. But Flores killed RFRA with respect to state laws. So for most states – those that haven’t passed their own version of RFRA – the rule is still what Smith said it was back in 1990: if a law is intended to be general-purpose and is not deliberately aimed at religious practice, but just happens to prohibit something that some religion requires its adherents to do, that’s ok and the law doesn’t violate the Free Exercise Clause.
So that’s the context in which those “no cakes for gays” laws come up. The concern, apparently, is that general-purpose laws like state civil rights laws, which prohibit businesses from discriminating on the basis of (among other things and in at least some states) sexual orientation, will have the incidental effect of forcing people whose religions forbid them to participate in same-sex wedding ceremonies, in the same sense that Dr. Goldman’s religion forbade him from going around without his yarmulke, to participate in them anyway. There are a lot of problems with that argument, notably including the point that Lukumi Babalu Aye really does put some pretty stringent limits on the government’s ability to pass laws that accidentally-on-purpose criminalize religious practice. Nevertheless, a lot of religious groups worry that the Smith rule, which is still in effect in most states, allows the jackbooted government thugs to prevent people from practicing their religion. And it’s not a particularly new concern; it’s been around since about three minutes after the Smith decision came down in 1990 and kicked off a decade-long squabble between Congress and the Supreme Court over this issue. So that’s a little historical perspective on those proposed laws.