Free Exercise of Religion: The Post-Smith Cases
The issue: When is a law not one of general applicability, but rather one that "targets" religion?

After the revolutionary decision in Employment Division of Oregon v Smith, only laws or government practices that specifically target religious exercise become subject to heightened judicial scrutiny.  But what does it mean exactly for a law or practice to target religious exercise?  That is the issue the Court explores in the series of cases that follow.

Hialeah banned ritual animal slaughter, commonly practiced by followers of the Santeria religion

In 1993, in Church of Lukumi Babalu Aye v Hialeah, the Supreme Court took a case which it concluded showed an attempt by government to specifically target an unpopular religious practice, and struck down the laws in question--all designed to deal with animal sacrifice practiced by a large but largely clantestine religion of mostly ex-Cubans.  The Court unanimously concluded that the ordinances of Hialeah violated the Free Exercise Clause.

Joshua Davey (American Bar Journal photo)

In 2004, the Supreme Court in Locke v Davey considered the reach of Lukumi Babalu in a case involving a Washington State scholarship program for gifted students.  The program allowed students receiving a state scholarship to pursue any major, with one exception: a degree in devotional theology.  When Joshua Davey, a scholarship recipient, was denied funding to pursue a theology program at Northwest, a private religious college, he sued, alleging that Washington had violated his Free Exercise right.  Chief Justice Rehnquist, writing for a 7 to 2 majority, found that the Free Exercise Clause and Establishment Clause, read together, offered enough "play in the joints" to allow Washington to exclude a major in devotional theology, "a religious calling" as much as "an academic pursuit," from the list of endeavors it will support with taxpayer funds.  Justices Scalia and Thomas disagreed, finding the exclusion to be a clear violation of Free Exercise principles laid down in Lukumi Babalu.

Trinity Lutheran Church's empty playground in Columbia, Missouri

In 2017, the Court blew more life into the Free Exercise Clause by demonstrating how it can be a potent weapon for religious groups who are denied access to government programs and benefits that are generally open to secular applicants, but which exclude applicants based on religious affiliation.  In Trinity Lutheran Church of Columbia v Comer (2017), the Court considered the case of a Lutheran Church that applied to the Missouri DNR for funding to resurface its gravel playground with a softer surface made from recycled tires.  The funding would have been provided but for the fact that the applicant was a religious institution and Missouri's conclusion that providing such funding would violate its own strict constitutional provision separating church and state.  Writing for a 7 to 2 majority, Chief Justice Roberts found that the rejection of the grant application was a violation of the Free Exercise Clause.  Roberts wrote, "Our cases make clear that a condition that imposes a penalty on the free exercise of religion must be subjected to the most rigorous scrutiny."  Locke v Davey, the Court concluded, was distinguishable.

In the much anticipated case of Masterpiece Cakeshop v Colorado, the Court opted for a narrow 7 to 2 decision in which the Court's conservatives were joined by Justice Kagan and Justice Breyer.  The case involved the refusal of a cakeshop's owner to create a cake for a celebration of the wedding of two gay men.  The men had been lawfully wed in Massachusetts at a time Colorado did not allow same-sex marriages.  The owner of the cakeshop said he would sell the couple brownies or cookies, but would not create a cake for them because of his sincere religious belief that God intended marriages to be only between a man and a woman.  Rather than answering the larger question of whether a business owner can be compelled by the state to use his or her artistry to create a product or service for an event he or she finds religiously objectionable, the Court focused on the fact that a couple of members of the Colorado Civil Rights Commission, which found the baker's refusal to violate Colorado's anti-discrimination law, to have made statements demonstrating a hostility to the baker's Fundamentalist beliefs.  Thus, the Court concluded, they had "targeted" religion in this particular case--in violation of the Free Exercise Clause.  The larger questions will come back before the Court soon. 

In the midst of a global pandemic, religious groups in California sued Governor Newsom, arguing that the governor's emergency order limiting the size of gatherings in private homes and buildings to just three families violated their rights to freely exercise their religion.  By a vote of 5 to 4, in a per curium decision, the Supreme Court agreed in Tandon v Newsom (1921), concluding that the law treated religiously gatherings less generously than certain other gathering of similar size posing similar risks.

Is the End Near for Smith?

The closely watched case of Fulton v Philadelphia (2021) suggests the end of the road might be near for Employment Div. of Oregon v Smith, with six justices suggesting that the case should be overruled.  Justices Alito, Thomas, and Gorsuch would have used Fulton to do just that, citing the grave danger they believe the decision poses to religious liberty.  they would return to the pre-Smith compelling state interest analysis of Sherbert and Yoder. Justices Barrett, Kavanaugh, and Breyer agreed Smith was wrongly decided ("As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination"), but were not sure what to replace it with and believed that the case before them could be decided in favor of religious liberty using existing precedent.  In the case itself, the Court unanimously found that Philadelphia's decision to terminate its contract for adoption services with the Catholic Children's Bureau because of its policy of not placing children with same-sex couples .

Free Exercise Clause

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. (Amendment 1)


Church of Lukumi Babalu Aye v. Hialeah (1993)
Locke v Davey (2004)
Trinity Lutheran Church of Columbia v Comer (2017)
Masterpiece Cakeshop v Colorado (2018)
Tandon v. Newsom (2021)
Fulton v Philadelphia (2021)

Jack Phillips, owner of the Masterpiece Cakeshop in Colorado.

Sharonell Fulton, who has fostered children through Catholic Social Service,
challenged Philadelphia's decision to exclude CSS from their foster program
.(photo: Beckett, Philadelphia Inquirer)


1.. Lukumi Bababu Aye holds that government may not target a religious practice for prosecution.  Suppose a state where concerned about a religious sect that practiced the handling of poisonous snakes in its worship services.  How might the state draft a law that would avoid the constitutional problems that Hialeah encountered with its law attempting to deal with animal sacrifice?
2. Could you suggest a way in which Hialeah could redraft its ordinances to effectively prohibit animal sacrifice without violating the Free Exercise Clause or criminalizing widely accepted forms of animal killing?
3.Although the opinion narrowing the Free Exercise test was primarily joined by the Court's conservatives, it is also the conservatives on the Court that have been most likely to conclude that a law or practice targets religion (see Locke and Masterpiece Cakeshop).  How do you explain this?
4. The Court avoided the larger and more interesting questions raised in the Masterpiece Cakeshop case by narrowly relying on what it perceived to be the hostility toward religious exercise exhibited by some administrators.  What if that alleged hostility were not in the record.  Should a cakeshop owner, under the First Amendment, be protected in his or her decision not to decorate a cake for a gay wedding?  What about a cake that specifically "celebrates" through words or art the legality of gay marriage?


"Church of the Lukumi Babalu Aye

"The Ministerial Exception"

Our Lady of Guadalupe v Morrissey-Berru (2020)

The Court decides that  a 6th-grade teacher of secular subjects at a Catholic school falls within the "ministerial exception," and therefore her suit alleging age discrimination as the reason for her dismissal must be thrown out.

The independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in what we have termed “‘matters of church government.’ ” This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.

The “ministerial exception” was based on this insight. Under this rule, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions. The rule appears to have acquired the label “ministerial exception” because the individuals involved in pioneering cases were described as “ministers.” But it is instructive to consider why a church’s independence on matters “of faith and doctrine” requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities. Without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith. The ministerial exception was recognized to preserve a church’s independent authority in such matters.

--Justice Alito, writing for the Court in Our Lady of Guadalupe

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