Some precedents refuse to stay buried.
Today the Upper Midwest Law Center filed an amicus brief asking the U.S. Supreme Court to overturn the 1990 precedent Employment Division v. Smith, which UMLC argues continues to weaken protections for the free exercise of religion.
The brief was filed in a separate, current case before the Court, Miller v. McDonald, involving Amish families challenging New York’s elimination of a longstanding religious exemption from school vaccination requirements. The families argue the policy forces them to choose between complying with the mandate and adhering to sincerely held religious beliefs.
The Second Circuit upheld the policy under Smith, which generally allows neutral, broadly applicable laws to survive a Free Exercise challenge even when they substantially burden religious practice.
UMLC argues that is exactly why the precedent needs another look.
“The Supreme Court has spent decades narrowing Smith, but lower courts continue to bring it back when rejecting religious liberty claims,” said Brent Robbins, Senior Counsel for Religious Liberty at the Upper Midwest Law Center. “This case gives the Court an opportunity to finally resolve that contradiction and restore meaningful protection to the Free Exercise Clause.”
The brief notes that the Supreme Court has repeatedly limited Smith’s reach and has not relied on it to reject a Free Exercise claim in the decades since it was decided. Yet lower courts continue to invoke it in cases involving religious schools, churches, employees and families.
Appropriately for a filing on the eve of Halloween, UMLC compares Smith to the Draugr of Norse mythology, a menace that lies dormant only to rise again.
The brief also points to Lemon v. Kurtzman, another First Amendment precedent the Supreme Court narrowed and sidestepped for years before ultimately abandoning it.
“Religious liberty should not depend on whether an old precedent happens to be useful to the government,” said Doug Seaton, President of the Upper Midwest Law Center. “When families are forced to choose between their faith and their children’s education, the Constitution should provide meaningful protection. It is time for the Supreme Court to address Smith directly.”
UMLC is asking the Court to hear Miller, overturn Smith and strengthen constitutional protection for the free exercise of religion.
The brief (view here) was filed in Miller v. McDonald, No. 26-438, in support of the petitioners by the Upper Midwest Law Center, National Legal Foundation and Minnesota Partnership for Achievement.