Introduction to the South Dakota Law Review's 2010 symposium issue.

• Author: Hamilton, Marci A.

The twentieth anniversary of the Supreme Court's decision in Employment Division v. Smith (1) is worth observing, not because the doctrine announced in the decision actually changed free exercise doctrine that much, (2) but rather because the responses to it changed history. Even though the Court stated that it was following the doctrine employed in the "vast majority" of cases, (3) and even though Justice O'Connor's concurrence made it clear that strict scrutiny had not been used in all free exercise cases, (4) scholars and religious lobbyists leapt to argue in the public square that Smith radically altered free exercise doctrine because it did not apply strict scrutiny. Examined in the cool light of history, their statements were exaggeration and hyperbole, but they were taken as true by the public, including members of Congress.

Religious groups treated Smith as an opportunity for political gain, and gain they did--at the expense of the public good. Twenty years later, the Supreme Court has been displaced as the primary interpreter of religious liberty guarantees by ill-conceived legislation that offers religious claimants an embarrassment of power to overcome laws necessary to protect others from harm. Moreover, those legislative favors have led religious claimants to believe that the Constitution and society owe them relief from any law that burdens their religious conduct. They have come to believe they are entitled to avoid the law.

Ironically, the immediate effect of the Smith decision was that numerous states increased the Native American Church's religious liberty by following the example of the peyote exemptions mentioned approvingly in Smith. (5) The Native American Church now enjoys the ability to use peyote during religious ceremonies in numerous states (6) and under federal law. (7) Thus, the decision, which was denounced in the press, (8) law review articles, (9) and Congress (10) as the purported end of religious liberty, actually spurred full liberty for the plaintiffs' religious organization in the case. As we observe this twenty-year anniversary, it would be a mistake to lose sight of the actual impact of the decision on the religious liberty of the plaintiffs themselves.

While legislatures were enacting accommodations for the tiny and politically powerless Native American Church, lobbyists for religious organizations were pressuring Congress to enact legislation that would impose strict scrutiny in every religious case, on the ground that the legislative accommodation Smith praised would be unlikely to occur. The argument was made repeatedly that "minority" religions cannot obtain legislative accommodation and, therefore, need strict scrutiny in every free exercise case. Testimony to Congress included the following statement by Reverend Oliver S. Thomas, speaking on behalf of the Baptist Joint Committee on Public Affairs and the American Jewish Committee:

"State and local legislative bodies cannot be relied upon to craft exceptions from laws of general application to protect the ability of the religious minorities to practice their faiths, an explicit fundamental constitutional right." (11)

As the constitutional Framers understood so well, all those with power will try to abuse it. (12) Religious groups are not immune to the temptations of power and opportunity. Once religious lobbyists had the attention of Congress with the denunciations of Smith, a political movement was born. The organization of religious and civil rights organizations was named the "Coalition for the Free Exercise of Religion." (13) They obtained the Religious Freedom Restoration Act of 1993, which purported to "restore" free exercise doctrine but in fact instituted strict scrutiny in circumstances where it never would have been applied before. (14)

RFRA was found unconstitutional in Boerne v. Flores in 1997 on multiple grounds, (15) but by then religious groups had come to treat statutorily enhanced religious liberty as an entitlement. Therefore, they quickly returned to Congress to demand its re-enactment. In response to Boerne, Congress took up the Religious Liberty Protection Act, (16) and when it became clear it could not pass, members chose two arenas on which to impose strict scrutiny: land use and prisons in the Religious Land Use and Institutionalized Persons Act (RLUIPA). (17)

RLUIPA is particularly interesting in this strange doctrinal history, because it marries two arenas within which strict scrutiny for free exercise claims simply was not contemplated before RFRA was enacted--prisons and land use. Before RLUIPA, prison regulations were treated to...