Jonas Yoder had a problem. A member of the Old Order Amish religion, Yoder believed that his children should not attend public school after eighth grade. It would subject her children to “worldly” influences and possibly endanger their eternal salvation. But the state of Wisconsin, where he lived, required his children to go to school until grade 10. If he broke the law, Yoder would face fines.
Yoder took his case to court, saying his First Amendment right to the free exercise of his religion was denied. In a 1972 decision, Yoder won – but should he? What kinds of standards should be applied when people claim that their ability to freely exercise their religious beliefs has been denied?
This is not an abstract question, and it is one that demands attention because recent cases in the United States Supreme Court have addressed these questions in new and surprising ways. The Supreme Court’s understanding of religious freedom is changing under our feet. Yet there is little that judges can do to protect religious freedom; the real work of building a society that protects this vital First Amendment right belongs to each of us.
As an example, consider the two main legal approaches, or “tests,” to cases of religious exercise that have prevailed over the past 60 years.
The first – known as the “Sherbert test” – asserts that the government must have a “compelling state interest” to restrict religious exercise and must pursue that interest by “the least restrictive means.”
The second – known as the “Smith test” – sets a much lower bar for religious freedom :, and all rules and regulations that apply to religious belief must also apply to other areas. of life.
The choice of which approach to use will often determine the outcome of a case. In Yoder’s case, the court applied the Sherbert test, virtually guaranteeing that he would win. All parties conceded that Yoder’s beliefs were sincere and that they were weighed down by law. The court found that Wisconsin did not have a “compelling state interest” in keeping Yoder’s children in school for two more years, and so it was Yoder who won.
But things might not have worked out that way if Smith’s test had been applied. Smith examines whether a law is neutral and generally enforceable, and both criteria appear to be met by the Wisconsin Compulsory Education Act – it does not appear to be motivated by intolerance of the Amish, and it applies to religious children. and not religious. There is no presumption in favor of religious accommodation. It seems Yoder would either have to send his children to school or face the consequences of disobeying the law.
Of course, Smith wouldn’t be decided until many years after the Yoder case, but it’s important to see how the different standards would have influenced the outcome. The Smith test has been the standard since 1990 and has inspired both critics and supporters. But now it seems to be undergoing a strange metamorphosis – recent decisions have given it new life and meaning, bringing it (surprisingly) closer to Sherbert’s test. How could this happen?
Let us consider two important cases of free exercise decided in recent years: Cakeshop masterpiece c. CCRC and Fulton v. Philadelphia. Decided in 2018 and 2021, respectively, these decisions were to be successful cases in religious freedom law, ready to adopt or rebut the standard in Smith. Still, the court found new ways to apply the test – Smith has been reaffirmed, but in a much more demanding form.
In Masterpiece, the court ruled in favor of a Colorado baker who refused for religious reasons to create a custom cake to celebrate a gay marriage. The majority opinion explained that “(Jack) Phillips’ religious objection was not viewed with the neutrality required by the free practice clause”, due to several derogatory remarks made by members of the Colorado Civil Phillips’ Beliefs Rights Commission. Failure to treat Phillips’ beliefs with neutrality resulted in a 7-2 judgment in his favor.
Likewise, the Fulton the case once again found a way to use Smith to protect religious freedom rather than attack it. Due to religious beliefs, Catholic Social Services in Philadelphia would not conduct home studies for same-sex couples hoping to be placed in foster care, but would instead refer them to another agency in the city. Philadelphia objected on the grounds that CSS violated its contract based on principles of non-discrimination.
To the surprise of many, the court ruled unanimously in favor of CSS. Equally surprising was the court’s explanation that the non-discriminatory wording of the contract allowed exceptions and therefore could not be considered generally applicable. Smith won it, but it’s a Smith that few would have recognized a few years ago.
Cases like these demonstrate that the application of existing standards of free exercise is not particularly clear, making the outcome of future religious freedom cases difficult to predict. Smith can apparently be used to accommodate religious freedom or not, depending on how it is applied. Linda Greenhouse, New York Times columnist goes so far as to say “there is no longer any reason for the tribunal to waste time and energy fighting for the Employment Division v. Smith ”because recent cases have made“ Smith’s barrier to religious exemptions so easily evaded as to be irrelevant ”.
But perhaps we are asking too much of legal standards to begin with. The courts play an important role in defending religious freedom, and we must seek and uphold the best standards that embody the Constitution’s commitment to religious freedom. However, many disputes can be resolved before they go to court. As Elder Dallin H. Oaks, First Counselor in the First Presidency of The Church of Jesus Christ of Latter-day Saints and former Utah Supreme Court jurist, said, courts should be seen as a “last resort” rather than our “first resort” to defend religious freedom.
The defense of the religious freedom that affects most of us will be localized and practical rather than nationalized and abstract. When judges plead difficult cases that do not have a clear ‘right’ answer, the the decisions often lead to errors in the results, straining judicial credibility and sometimes creating even more uncertainty for future decisions.
Paradoxically, the best way to assert your rights to free exercise is perhaps to focus on the responsibilities of free exercise instead. For many denominations this means seeking ways to serve, fostering honesty and integrity, and seeking truth in all its forms. The fulfillment of these responsibilities gives substance to religious freedom, which naturally leads policy makers to want to preserve religious rights.
Anna Bryner is a recent graduate of Brigham Young University, where she studied journalism and political science. Brady Earley is a recent graduate of BYU, where he studied Economics and American Studies. Daniel Frost is an assistant professor at the School of Family Life at BYU.