Recommended Garret Epps’ Paper on Employment Division v. Smith

Garrett Epps has posted his 1998 Arizona State Law Journal paper, “To an Unknown God: The Hidden History of Employment Division v. Smith.” He later expanded it into a powerful book, To an Unknown God: Religious Freedom on Trial. Both are highly recommended.

Here is the abstract:

The Supreme Court’s decision in Employment Division v. Smith, is once again the law of the land-and once again, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.”

In City of Boerne v. Flores, the Court invalidated, at least as applied to State governments, the Religious Freedom Restoration Act (RFRA). RFRA was passed by Congress with the explicit aim of voiding Smith’s holding 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).’ ”

The Smith doctrine was at least implicitly upheld by the six-Justice majority in Flores. The opinion not only restated the Smith rule, it further repeated the controversial “hybrid case” doctrine enunciated for the first time by Justice Scalia in Smith II: “The only instances where a neutral, generally applicable law had failed to pass constitutional muster, the Smith Court noted, were cases in which other constitutional protections were at stake.”

The Flores Court’s implied reaffirmation of Smith is remarkable because Smith was one of the most unpopular decisions in the Court’s recent history. Learned commentators have almost unanimously excoriated the Court’s result and rationale.” Journalistic commentators have been scathing. The United States Congress expressed its opinion of the decision in unmistakable terms by its passage of not one but two statutes purporting to void the result. Besides RFRA, which mentions Smith II by name, Congress in 1994 also passed amendments to the American Indian Religious Freedom Act that mandate an exemption from state and federal drug laws for religious use of peyote by Native Americans. Despite this repudiation, the Court has seemingly embraced Smith II once again. The time is more than ripe, therefore, for an examination of the case that has brought us to this point.

In 1994, I set out to find and document the actual people and decisions that created the case. The technique I used is familiar to historians – oral interviews designed to supplement and illuminate the written record.’ The use of “oral history” is designed to elicit the kind of information often omitted by those who prepare written documents.

Part II of this Article is a summary of Al Smith’s remarkable life, much of it in his own words; a brief profile of Galen Black, his Anglo co-claimant; and an account of the career of Smith’s tenacious adversary, Dave Frohnmayer. Part III provides an introduction to the legal and constitutional background in Oregon at the time the case arose, with emphasis on the violent encounter between the State and the religious commune in eastern Oregon known as Rajneeshpuram. Part IV details the dispute that led to the dismissal of Black and Smith. Parts V-VII consider the case in its first iteration through state courts and the U.S. Supreme Court. Part VIII details the extraordinary efforts at settlement of the case that took place shortly before oral argument in Smith II. Part IX describes oral argument from the point of view of the participants. Part X analyzes the response to Smith II, in Oregon and across the nation. In my Conclusion, I argue that the difficulties our legal system has had in dealing with Smith II are but a foretaste of coming religion cases, as our courts grapple with the Free Exercise Clause-our Constitution’s altar to an unknown god.

Fletcher & Vicaire: “Indian Wars: Old and New”

Matthew Fletcher and Peter Vicaire have posted “Indian Wars: Old and New” on SSRN (download here). This is a paper prepared for the Journal of Gender, Race, and Justice’s 15th Anniversary symposium, “War On … The Fallout of Declaring War on Social Issues.”

Here is the abstract:

This short paper analyzes American history from the modern “wars” on poverty, drugs, and terror from the perspective of American Indians and Indian tribes. These domestic “wars” are aptly named (it turns out), as the United States often blindly pursues broad policy goals without input from tribal interests, and without consideration to the impacts on Indians and tribes. With the possible exception of the “war on poverty,” these domestic wars sweep aside tribal rights, rights that are frequently in conflict with the overarching federal policy goals.

This essay explores three declared domestic wars, and their impacts on American Indian tribes and individual Indians, in loose chronological order, starting with the war on poverty. As Part 1 demonstrates, the Johnson Administration’s Great Society programs helped to bring American Indian policy out of the dark ages of the era of termination, in which Congress had declared that national policy would be to terminate the trust relationship. Part 2 describes the war on drugs, declared by the Reagan Administration, which had unusually stark impacts on reservation communities both in terms of law enforcement, but also on American Indian religious freedom. Part 3 examines the ongoing war on terror, which Bush Administration officials opined has its legal justification grounded in part on the Indian wars of the 19th century. The war on terror marks America’s return to fighting a new Indian war, where the adversary is illusive and motivated, and where the rule of law is literally obliterated.

Cardozo Law Conference on Employment Division v. Smith — No Indian Law Scholars

Ach, hate to point this out. Here is the agenda for last week’s major conference on Employment Division v. Smith at Cardozo, with papers to be published in the Cardozo Law Review (which last published an Indian law article in 1991, as far as we can tell).

We had a great discussion on religious freedom this last weekend with Doug Laycock, Chris Lund, and Frank Ravitch.

Events at University of South Dakota School of Law This Weekend

Feb. 18

Twenty Year Anniversary of Employment Division v. Smith, Feb 18, Two Panel Symposium

Matthew Fletcher, Dillon Lecture

Feb. 19-20

National NALSA Moot Court Competition

South Dakota Indian Law Conference Tentative Agenda

USD Law and USD NALSA are hosting an Indian law conference next week. Here is the agenda.

Thursday, February 18

8:45am: Muffins and coffee in State Bar Room

9:00am: Marci Hamilton book signing (courtroom)

10:00am: Drum/prayer/first panel

1st Panel – Perspectives on Free Exercise Jurisprudence after Smith

Professor Marci Hamilton

Professor Mark Kende

Professor Chris Lund

Professor Rick Duncan

Moderated by Professor David Day

12:30pm lunch at Neuharth (approx. 35)

2:00pm second panel

2nd Panel – Religious Free Exercise Inside and Outside Indian Country

Professor Matthew Fletcher

Zackeree Kelin

Clint Kowan

Charles Grignon

Moderated by Professor Frank Pommersheim

5:30pm Dinner at Pro’s

7:00pm Dillon Lecture

Introduction by Frank Pommersheim

Professor Matthew Fletcher: Rebooting Indian Law in the Supreme Court

Followed by reception at law school

The National NALSA Moot Court competition begins the next day!

Call for Papers: South Dakota Law Review

From the South Dakota Law Review:

The South Dakota Law Review is pleased to announce that it has
selected the 20th anniversary of the Employment Division v. Smith
decision as the topic for its annual symposium issue.  The Smith
decision remains central to our understanding of the scope of religious
protection Americans enjoy and continues to provoke much debate.  The
anniversary provides an occasion for scholars to engage the decision,
its impact on Free Exercise doctrine, and the subsequent actions by
Congress and the federal courts in the area of Free Exercise.

The Law Review invites the submission of abstracts on any facet of policy
or law research relating to the symposium topic.  The topic will
encompass diverse areas of religion and the law, with an emphasis on Indian law and constitutional law.

To submit an abstract for publication consideration, send an electronic copy of the abstract by email to by August 10, 2007.  All abstracts must contain original work that has not previously been published.

Ronald Krotoszynski on Employment Division v. Smith II

Ronald Krotoszynski has published “If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith” in the Northwestern University Law Review. Here is an excerpt from the introduction:

Thus, the standard approach is to link the importance of religious autonomy with a strict form of judicial scrutiny for governmental actions that have the incidental effect of denying religionists, including but not limited to members of minority religions, the ability to engage in religiously motivated conduct. Viewed from this vantage point, Smith is highly objectionable because it makes successful free exercise challenges to general laws virtually impossible to win. Even if the federal courts have not applied strict scrutiny in an exacting fashion, lowering the standard of review to mere rationality virtually ensures that most free exercise claims will fail. Thus, the Justices who support strict scrutiny of neutral laws of general applicability that burden religiously motivated practices, such as Justice Brennan and Justice O’Connor, object strenuously to Smith’s change in the governing standard of review from earlier cases, such as Sherbert and Wisconsin v. Yoder, the latter a case that upheld a free exercise claim brought by Amish parents who wished to remove their children from the public schools after the eighth grade. If the Free Exercise Clause exists to facilitate absolute religious autonomy, the Sherbert approach advocated by Justices Brennan and O’Connor would better honor free exercise values. At the very least, it certainly seems reasonable to frame the Free Exercise Clause in terms of religious autonomy.

Rather than as advancing religious liberty or autonomy values, one could alternatively conceive of the Free Exercise Clause as primarily promoting religious equality. If equality among sects is the primary purpose of the Free Exercise Clause, the Smith test (or something like it) might offer a better reading of the Clause than Sherbert and Yoder.

Gary Simson on Native American Religious Freedom & State Law

Gary Stimson has posted “Reflections on Religious Freedom: Revisiting ‘Rourke v. Department of Correctional Services,'” published in the Albany Law Review. Here is the abstract:

This contribution to a symposium on religious liberty looks closely at a New York case that illustrates both the inadequacy of federal free exercise law and the importance of state constitutional law. The claimant in the case, a Native American prison guard, had been fired for refusing on religious grounds to abide by a state-wide directive governing prison guards’ hair length. Contrasting the serious burden that the directive placed on the claimant’s religious liberty with the weak justifications that the state offered for requiring the claimant’s adherence to the directive, the article argues the implausibility of the narrow interpretation of the federal Free Exercise Clause that the Supreme Court adopted in 1990 in Employment Division v. Smith. The article then uses the New York case to demonstrate the potential for circumventing the shortcomings of Smith by attention to, and development of, state constitutional law.

Possible Future Circuit Split re: Bald & Golden Eagles Protection Act

An interesting question is brewing in the Ninth and Tenth Circuits — whether the administration of the National Eagle Repository (created by the USFWS as a means to create an exception to the Bald and Golden Eagles Protection Act for American Indians) is unconstitutional as applied to American Indians.

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Stanley Fish on Religious Freedom

Stanley Fish, as always, has something interesting to say about the law. In this post (“Monkey Business“) on his NYT’s blog, “Think Again,” Fish describes a case in federal court (S.D. N.Y.) about a claim that the importation of “bushmeat” for religious purposes that otherwise would violate the Convention on International Trade of Endangered Species.

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