Reasons to be grateful for Employment Division v. Smith

"Why can't I slaughter animals in my domicile?"

Fifteen years ago, Smith reimported conherency and common sense into Free Exercise Clause jurisprudence, observing that while "the exercise of religion often involves not only belief and profession[,] but the performance of (or abstention from) physical acts,"1 and while "a State would be prohibiting the free exercise of religion if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display," 2 it should be obvious that "the right of 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)'."3

Just as the First Amendment prohibits laws that restrain free speech qua laws that restrain free speech, but not generally laws which may have some incidental effect on free speech,4 the First Amendment prohibits laws that attack free exercise of religious beliefs qua laws that attack free exercise of religious beliefs, not laws that apply to conduct by all persons and which happen to burden a practise claimed as a religious practise. No matter how strongly one might assert that one's religion prohibits lending money for example, and no matter how strongly one asserts that paying taxes violates this belief, you won't get a free pass from the IRS.

That decision was stunningly unpopular at the time -- it provoked Congress to all-but unanimously pass the ill-fated5 RFRA -- but I think will, in time, come to be embraced by even its fiercest critics (as indeed was Scalia's dissent in Morrison v. Olson) if the demand for free exercise exemptions for Sharia practices surfaces in the United States as it recently did in Canada.

That view entirely suffices to decide the present issue. As the WashTimes tells the story, "Police have told Mr. Merced that his Santeria religious rites are against the law in this rapidly growing community because some of its ordination rituals involve the sacrifice of animals." If Euless bans the slaughtering of animals in domiciles, then unless there is a clear showing that the law is directed at preventing the slaughtering of animals for religious purposes, Merced loses.

1. 1. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U.S. 872, 877 (1991)
2. 2. Ibid. (emphasis added; internal quotation marks omitted)
3. 3. Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263, n.3 (1982) (Stevens, concurring in judgment)).
4. 4. For example, a state may not ban the burning of the American flag, Texas v. Johnson, 491 U.S. 397 (1989), but it may generally prohibit burning items in the street, and pursuant to that law, jail a man for burning a flag; see Barnes v. Glen Theater, 501 U.S. 560, 572 (1991) (Scalia, concurring). But see Virginia v. Hicks, 539 U.S. 113, 118-9 (2003):

   The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges. The showing that a law punishes a substantial amount of protected free speech, judged in relation to the statute's plainly legitimate sweep, suffices to invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.

   (Internal quotation marks and citations omitted).

5. 5. See City of Boerne v. Flores, 521 U.S. 507 (1997)