Smith and Neutrality

[Steven D. Jamar]

I am not a fan of the Smith decision, in part for the reasons stated by
Rick Duncan, though I see it less starkly than he does.

I think the idea of a neutral law of general applicability is more workable
than Rick seems to think it is.  If one takes any legal proposition to its
logical extreme or interprets any principle or rule of law too literally,
the sorts of problems Rick identifies pop up all over the place.  The law
does not (normally) and ought not work that way.

A statute is, under common meaning and, I think, under the Smith meaning,
generally applicable and "neutral" if the real purpose of the law is
secular and secular aims (as the term secular is generally understood -
though it too is not without problems) and effects are the purpose of it
and the predominant effects of it.  The aim of anti-discrimination laws are
not to target religion or limit free exercise.  The aim is to eliminate, or
at least make illegal and more costly, types of discrimination we, as a
liberal, inclusive people, do not want to permit, or that we think are
unfair or have no proper place in the secular or commercial world.
Included in that list is discrimination on the basis of religion.  This
enhances free exercise rights in most settings.  Exempting religious
organizations from such laws not only avoids establishment concerns (in the
sense of entanglements and directing religious orders what to think and how
to act), but also provides space for those religious orders to exercise
their beliefs relatively freely.  So an exemption from an otherwise
generally applicable and neutral statute can enhance these
non-establishment and free-exercise interests in a very real, practical
way, regardless of whatever tight logical gaps and inconsistencies we may
so nicely expose.

Then what about a state RFRA?  The state says that as to most laws the
religious rights should trump otherwise generally applicable, neutral laws.
Surely this expands free exercise rights, though it may seem to be
favoring (accommodating?) religious interests over secular ones and hence
have some modest establishment effects.  Now if the state says that
anti-discrimination laws are not subject to the state RFRA, and the
anti-discrimination laws in general enhance free exercise by limiting the
ability of people to discriminate on the basis of religion and if the state
RFRA has the effect of helping free exercise rights in the face of state
action, it seems that free exercise interests are helped, and helped a lot.

Are there people who will be adversely affected?  Surely.  The person who
is in the position of power who wishes to discriminate on the basis of
religion will have his or her rights to do so limited.  Thus the religious
secular employer or landlord or shopkeeper or hotel owner or restaurant
owner, etc. will need to have some circumscribing of the exercise rights
(the right to discriminate in this case on the basis of religion) in
exchange for being permitted to have access to those sorts of societal
goods.  This certainly seems permissible to me, though, as I have argued in
a much-too-long article, the current balance strikes me as off-base and
more room should be allowed for those sorts of people in positions of
relative power to act on their beliefs.  But I accept the premise that
there should be some limits.  I think Rick does not.

Cheers,
Steve

Steven D. Jamar

President, Legal Writing Institute

Professor of Law
Director LRW Program
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
email:  sjamar at law.howard.edu

The more you know, the more you know you don't know.