Are Smith and Hialeah reconcilable?

• Author: Alexander, Larry

I

In Employment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court held that the Free Exercise Clause does not mandate religious exemptions from "generally applicable law."(1) In Smith, the law of general applicability was one banning the use of various drugs, including peyote. The religious exemption in question was one for the Native American Church, which uses peyote in its rituals. So long as the law of general applicability has a legitimate secular purpose, i.e., as long as it is not so arbitrary as to be a denial of due process, its burdening of religious practices does not violate the Free Exercise Clause. Put differently, the state's denial of a religious exemption need not serve more than a legitimate secular interest, contrary to what the law prior to Smith had been, at least as stated. Prior to Smith, the black letter law required that denial of a religious exemption be supported by a compelling governmental interest. Not so after Smith.

If we can schematize the free exercise doctrine after Smith, it would look like this: For any secular value V, the state may rank V above any religious value R (so long as R is manifest in conduct and not merely belief or expression). Or, V > R is constitutionally permissible.

II

The citizens of Hialeah, Florida apparently find the ritual sacrifice of chickens by the Santerian religious sect a disgusting and perhaps immoral practice. In 1987, Hialeah passed an ordinance banning the slaughter of animals but making so many exceptions that, for practical purposes, only the Santerians and perhaps wanton animal killers came within the ordinance. The Supreme Court found the ordinance to be violative of the Free Exercise Clause.(2) Unlike the law of general applicability in Smith, this law discriminated against a religious practice.

III

According to Smith, so long as Hialeah wants to protect the lives of chickens or other animals for secular reasons, e.g., Hialeah values the lives of animals, it may pass a law banning the slaughter of animals and need not exempt the Santerians. The value of animal life ([V.sub.A]) may trump the Santerians' religious value R without violating the Free Exercise Clause.

IV

Any other (secular) V can trump R as well. (This follows from I.) For example, suppose there were a religious sect whose practices required that wild animals be left undisturbed by humans. A law allowing the hunting of wild animals, perhaps for sport, perhaps for food, would be...