Employment Division v. Smith
There was a story yesterday about an effort to put a proposition on the San Francisco ballot that would ban male circumcision of children. Advocates of the ordinance consider the practice a form of child abuse. Jewish groups, naturally, are opposed.
If such an ordinance were approved, it seems clear that it would be constitutional under the Supreme Court’s analysis in Employment Div. v. Smith. Smith held that “the right to free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” In other words, the fact that the circumcision of infant boys is central to the Jewish faith does not create a constitutional privilege from a local ordinance banning the practice (unless you could show that the law was intended as an attack on Jews).
I think that Smith was wrongly decided. The reason it has stood for as long as it has is that only unpopular religions have been impacted by the case. A neutral law that hurts a more popular faith (e.g., a total alcohol ban in a town that made holding Catholic Mass impossible) such as the proposed SF ordinance would, I think, lead to a swift about-face by the Court.
My book on Jacksonian Democracy discusses Smith because “disparate impact” and religion was raised during the Cherokee Removal crisis, though the Court was evidently unaware of this precedent when it decided Smith. Georgia passed a statute that required all whites who wanted to enter the tribal area within the state to swear a loyalty oath to the State. The Protestant missionaries who wanted to work with the Tribe refused and some were prosecuted and sent to jail. Their supporters claimed that the Georgia law violated the freedom of religion (not as a federal constitutional matter, but in general). The Georgia legislature issued a report that essentially advanced the Smith rationale:
“The law which has excited so much feeling among our brethren of the eastern states is not partial or exclusive in its operation. . . . Our law in this, as well as other cases, aims at no individuals, and recognizes no exemptions. Your committee therefore declare that no objection can be urged against the State, with any propriety, upon the score of its inequality, for the State made all men ‘equal under the law.’”
Overall, the debate about the imprisonment of the missionaries tends to undermine Smith, but I can’t do justice to that in a post.