The Southern Baptist Convention’s church-state entity has joined other religious organizations in urging the Supreme Court to reconsider a nearly 30-year-old decision they say subverted the free exercise of religion.
The Ethics & Religious Liberty Commission (ERLC) and five other groups are asking in a friend-of-the-court brief for the justices to accept an appeal by an Idaho construction worker who has a work-related religious objection to correct “an unwelcome revolution” in its decision-making regarding the First Amendment protection for religious free exercise.
The First Amendment bars Congress from passing a law “prohibiting the free exercise” of religion, but the 1990 Employment Division v. Smith decision altered the way the clause has been interpreted. The Supreme Court ruled that the Constitution does not require an accommodation for free exercise of religion in the case of a neutral law that is generally applicable to the public.
The brief from the ERLC and the other organizations states, “Before Smith, the Court consistently applied the Free Exercise Clause to protect religious practice from any substantial government interference that could not be justified by a compelling state interest.”
Under Smith, however, “interference with religious exercise is generally permissible so long as it stems from a ‘neutral law of general applicability,’” according to the brief, filed on Aug. 13.
The result in many circumstances has been that Smith “effectively stripped the Free Exercise Clause of constitutional force,” the brief states. “The time has come for the Court to revisit Smith and to restore the Free Exercise Clause to its original meaning.”
ERLC President Russell Moore told Baptist Press, “Religious freedom is an inalienable right, not some benefit the government can withdraw whenever it sees fit. This faulty understanding of religious freedom was put forward in an infamous 1990 decision by the Supreme Court.
“This new case gives the court the opportunity to revisit this anemic vision of religious freedom,” Moore said in written comments. “My hope is that the justices will take this case up and rule in such a way that recognizes religious liberty for the inalienable right that it is.”
Also signing onto the brief were the General Conference of Seventh-day Adventists, Church of God in Christ, Church of Jesus Christ of Latter-day Saints, Lutheran Church-Missouri Synod and Union of Orthodox Jewish Congregations of America.
The case involves George Ricks, a longtime construction worker who sought to start a business as an independent contractor. To do so, he sought to register with the Idaho Board of Contractors, which required that he provide his social security number. Because of his religious beliefs, Ricks refused to give his social security number, though he was willing to provide his birth certificate and other forms of identification, according to Becket, a religious liberty organization that represents him.
Because of the board’s refusal to accommodate his religious beliefs, Ricks filed suit in January. The Idaho Supreme Court declined to accept his case, and Becket petitioned the U.S. Supreme Court in July to rule on the suit.
The change the Smith ruling produced in 1990 in regard to free exercise of religion prompted a massive outcry from religious freedom advocates on both the left and right, including the ERLC, which was then known as the Christian Life Commission. The effort to remedy the high court’s action resulted in the Religious Freedom Restoration Act (RFRA), which requires the government to have a compelling interest and use the narrowest possible means in burdening a person’s religious exercise.
RFRA eventually gained nearly unanimous passage in Congress, and President Clinton signed it into law in 1993. The Supreme Court invalidated RFRA, however, with regard to its application to state and local governments.
The Smith opinion has produced ongoing problems, according to the brief, despite RFRA’s enactment.
Lower courts have struggled with the justices’ tests of “neutrality” and “general applicability,” the brief says. “Moreover, asking merely whether a law is ‘neutral’ or ‘generally applicable’ impoverishes the Free Exercise analysis: it fails to properly account for both the extent of the burden on religious exercise and the weight of the government’s interest.”
The Smith decision, according to the brief, has resulted in a lack of protection for religious freedom in such areas as dress and grooming requirements for religious minorities, zoning restrictions on churches and limitations on religious practice by churches and other religious bodies.
The case is Ricks v. Idaho Board of Contractors.
(EDITOR’S NOTE – Tom Strode is the Washington bureau chief for Baptist Press.)