EN
BANC
ALEJANDRO ESTRADA, A.M.
No. P-02-1651
Complainant, (formerly OCA I.P.I. No.
00-1021-P)
Present:
PANGANIBAN,
CJ.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
-versus-
CARPIO
MORALES,
CALLEJO,
SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
and
VELASCO,
JR., JJ.
Promulgated:
Respondent.
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R E S O L U T
I O N
PUNO, J.:
While man is finite,
he seeks and subscribes to the Infinite.
Respondent Soledad Escritor once again stands before the Court invoking
her religious freedom and her Jehovah God in a bid to save her family – united
without the benefit of legal marriage - and livelihood. The State, on the other hand, seeks to wield
its power to regulate her behavior and protect its interest in marriage and
family and the integrity of the courts where respondent is an employee. How the Court will tilt the scales of justice
in the case at bar will decide not only the fate of respondent Escritor but of
other believers coming to Court bearing grievances on their free exercise of
religion. This case comes to us from our
remand to the Office of the Court Administrator on
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of respondent Soledad Escritor, court interpreter in said court, for living with a man not her husband, and having borne a child within this live-in arrangement. Estrada believes that Escritor is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act.[2] Consequently, respondent was charged with committing “disgraceful and immoral conduct” under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code. [3]
Respondent Escritor testified that
when she entered the judiciary in 1999, she
was already a widow, her husband having died in 1998.[4]
She admitted that she started living with Luciano Quilapio, Jr. without the
benefit of marriage more than twenty years ago when her husband was still alive
but living with another woman. She also admitted that she and Quilapio have a
son.[5] But as a member of the religious sect known
as the Jehovah’s Witnesses and the
For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed. As laid out by the tenets of their faith, the Jehovah’s congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of legal impediments. Only couples who have been baptized and in good standing may execute the Declaration, which requires the approval of the elders of the congregation. As a matter of practice, the marital status of the declarants and their respective spouses’ commission of adultery are investigated before the declarations are executed.[8] Escritor and Quilapio’s declarations were executed in the usual and approved form prescribed by the Jehovah’s Witnesses,[9] approved by elders of the congregation where the declarations were executed,[10] and recorded in the Watch Tower Central Office.[11]
Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted, the validity of the declarations ceases, and the couple should legalize their union. In Escritor’s case, although she was widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not capacitated to remarry. Thus, their declarations remained valid.[12] In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her conjugal arrangement does not constitute disgraceful and immoral conduct for which she should be held administratively liable,[13] the Court had to determine the contours of religious freedom under Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be
required for the exercise of civil or political rights.
In our decision dated August 4, 2003, after a long and
arduous scrutiny into the origins and development of the religion clauses in
the United States (U.S.) and the Philippines, we held that in resolving claims
involving religious freedom (1) benevolent
neutrality or accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the
religion clauses in our Constitution; and (2) in deciding respondent’s
plea of exemption based on the Free Exercise Clause (from the law with which
she is administratively charged), it is the compelling
state interest test, the strictest test, which must be applied.[14]
Notwithstanding the above
rulings, the Court could not, at that time, rule definitively on the ultimate
issue of whether respondent was to be held administratively liable for there
was need to give the State the opportunity to adduce evidence that it has a
more “compelling interest” to defeat the claim of the respondent to religious freedom.
Thus, in the decision dated
(a)
examine the sincerity and centrality of respondent’s
claimed religious belief and practice;
(b) present
evidence on the state’s “compelling interest” to override respondent’s
religious belief and practice; and
(c) show that
the means the state adopts in pursuing its interest is the least restrictive to
respondent’s religious freedom. [15]
It bears stressing, therefore, that the residual
issues of the case pertained NOT TO WHAT APPROACH THIS COURT SHOULD TAKE IN
CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN
DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been ruled upon
prior to the remand, and constitute “the law of the case” insofar as they
resolved the issues of which framework and test are to be applied in this case,
and no motion for its reconsideration having been filed.[16] The only task that the Court is left to do is
to determine whether the evidence adduced by the State proves its more
compelling interest. This issue involves a pure question of fact.
B. Law of
the case
Mr. Justice Carpio’s insistence, in
his dissent, in attacking the ruling of this case interpreting the religious
clauses of the Constitution, made more than two years ago, is misplaced to say
the least. Since neither the complainant, respondent nor the
government has filed a motion for reconsideration assailing this ruling, the
same has attained finality and constitutes the law of the case. Any attempt to reopen this final ruling
constitutes a crass contravention of elementary rules of procedure. Worse,
insofar as it would overturn the parties’ right to rely upon our interpretation
which has long attained finality, it also runs counter to substantive due
process.
Be that as it may, even assuming that there were no
procedural and substantive infirmities in Mr. Justice Carpio’s belated attempts
to disturb settled issues, and that he had timely presented his arguments, the
results would still be the same.
We review the highlights of our decision dated
1. Old World Antecedents
In our August 4, 2003 decision, we
made a painstaking review of Old World antecedents of the religion clauses,
because “one cannot understand, much less intelligently criticize the
approaches of the courts and the political branches to religious freedom in the
recent past in the United States without a deep appreciation of the roots of
these controversies in the ancient and medieval world and in the American
experience.”[17]
We delved into the conception of religion from primitive times, when it started
out as the state
itself, when the authority and power of the state were ascribed to God.[18]
Then, religion developed on its own and became superior to the state,[19] its subordinate,[20]
and even becoming an engine of state policy.[21]
We ascertained two salient features in the review of religious history: First, with minor exceptions, the history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable service. This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in American constitutional democracy and in human history. [22]
Strictly speaking, the American
experiment of freedom and separation was not translated in the First
Amendment. That experiment had been
launched four years earlier, when the founders of the republic carefully
withheld from the new national government any power to deal with religion. As James Madison said, the national
government had no “jurisdiction” over religion or any “shadow of right to
intermeddle” with it. [23]
The omission of an express guaranty of religious freedom and other natural rights, however, nearly prevented the ratification of the Constitution. The restriction had to be made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day. Thus, the First Amendment did not take away or abridge any power of the national government; its intent was to make express the absence of power.[24] It commands, in two parts (with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment
of religion or prohibiting the free exercise thereof. [25]
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory purposes. They have a single goal—to promote freedom of individual religious beliefs and practices. In simplest terms, the Free Exercise Clause prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice, while the Establishment Clause prohibits government from inhibiting religious belief with rewards for religious beliefs and practices. In other words, the two religion clauses were intended to deny government the power to use either the carrot or the stick to influence individual religious beliefs and practices.[26]
In sum, a review of the
2. Religion
Clauses in the
The Court then turned to the
religion clauses’ interpretation and construction in the
At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with inconsistencies whether within a Court decision or across decisions. For while there is widespread agreement regarding the value of the First Amendment religion clauses, there is an equally broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has been reached by those who have studied the religion clauses as regards its exact meaning and the paucity of records in the U.S. Congress renders it difficult to ascertain its meaning.[27]
a. Strict Separation and Strict
Neutrality/Separation
The Strict Separationist believes that
the Establishment Clause was meant to protect the state from the church, and
the state’s hostility towards religion allows no interaction between the two.
According to this Jeffersonian view, an absolute barrier to formal
interdependence of religion and state needs to be erected. Religious
institutions could not receive aid, whether direct or indirect, from the state.
Nor could the state adjust its secular programs to alleviate burdens the
programs placed on believers.[29] Only the complete separation of
religion from politics would eliminate the formal influence of religious
institutions and provide for a free choice among political views, thus a strict
“wall of separation” is necessary. [30]
Strict separation faces difficulties, however, as it is deeply
embedded in American history and contemporary practice that enormous amounts of
aid, both direct and indirect, flow to religion from government in return for
huge amounts of mostly indirect aid from religion.[31]
For example, less than twenty-four hours after Congress adopted the First
Amendment’s prohibition on laws respecting an establishment of religion,
Congress decided to express its thanks to God Almighty for the many blessings
enjoyed by the nation with a resolution in favor of a presidential proclamation
declaring a national day of Thanksgiving and Prayer.[32]
Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never likely
to.[33]
The tamer
version of the strict separationist view, the strict neutrality or separationist view, (or, the governmental
neutrality theory) finds basis in Everson v. Board of Education,[34]
where the Court declared that
The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment Clause, it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Abington School District v. Schempp,[37] strict neutrality could lead to “a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious” which is prohibited by the Constitution.[38] Professor Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed
incompatible with the very idea of a free exercise clause. The Framers,
whatever specific applications they may have intended, clearly envisioned religion as something special; they
enacted that vision into law by guaranteeing the free exercise of religion but
not, say, of philosophy or science. The
strict neutrality approach all but erases this distinction. Thus it is not
surprising that the [
Thus, the dilemma of
the separationist approach, whether
in the form of strict separation or strict neutrality, is that while the
Jeffersonian wall of separation “captures the spirit of the American ideal of
church-state separation,” in real life, church and state are not and cannot be
totally separate. This is all the more true in contemporary times when both the
government and religion are growing and expanding their spheres of involvement
and activity, resulting in the intersection of government and religion at many
points.[40]
b. Benevolent
Neutrality/Accommodation
The theory of benevolent neutrality or accommodation
is premised on a different view of the “wall of separation,” associated with
Williams, founder of the
The
First Amendment, however, does not say that in every and all respects there
shall be a separation of Church and State.
Rather, it studiously defines the manner, the specific ways, in which
there shall be no concert or union or dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion would be
aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not
be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative halls; the appeals
to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; “so help me God” in our courtroom oaths-
these and all other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even
object to the supplication with which the Court opens each session: “God save
the
xxx xxx xxx
We are a
religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one
chooses. . . When the state encourages religious instruction or cooperates with
religious authorities by adjusting the schedule of public events, it follows
the best of our traditions. For it then
respects the religious nature of our people and accommodates the public service
to their spiritual needs. To hold that
it may not would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to widen their
effective scope of religious influence. [43]
Benevolent neutrality recognizes that religion
plays an important role in the public life of the
Examples of accommodations in
American jurisprudence also abound, including, but not limited to the U.S.
Court declaring the following acts as constitutional: a state hiring a
Presbyterian minister to lead the legislature in daily prayers,[45]
or requiring employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge;[46]
for government to give money to religiously-affiliated organizations to teach
adolescents about proper sexual behavior;[47]
or to provide religious school pupils with books;[48]
or bus rides to religious schools;[49] or with cash to pay for state-mandated
standardized tests.[50]
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in relation to governmental action, almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both. This is true whether one subscribes to the separationist approach or the benevolent neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and general applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the government action is not religiously motivated, these laws have a “burdensome effect” on religious exercise.
The benevolent neutrality theory
believes that with respect to these governmental actions, accommodation of religion
may be allowed, not to promote the government’s favored form of religion, but
to allow individuals and groups to exercise their religion without hindrance.
The purpose of accommodations is to remove a burden on, or facilitate the
exercise of, a person’s or institution’s religion. As Justice Brennan explained, the “government
[may] take religion into account…to exempt,
when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an atmosphere in which
voluntary religious exercise may flourish.”[51] In the ideal world, the legislature
would recognize the religions and their practices and would consider them, when
practical, in enacting laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened may turn to the courts for protection.[52]
Thus, what is sought under the
theory of accommodation is not a declaration of unconstitutionality of
a facially neutral law, but an exemption from its application or its
“burdensome effect,” whether by the legislature or the courts.[53]
Most of the free exercise claims brought to the
(2) Free Exercise Jurisprudence:
Sherbert, Yoder and Smith
The pinnacle of free exercise
protection and the theory of accommodation in the
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee’s conscientious objection to
Saturday work constitutes no conduct prompted by religious principles of a kind
within the reach of state legislation.
If, therefore, the decision of the South Carolina Supreme Court is to
withstand appellant’s constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of
her constitutional right of free exercise, or because any incidental burden on
the free exercise of appellant’s religion may be justified by a “compelling
state interest in the regulation of a subject within the State’s constitutional
power to regulate. . . .”[57] (emphasis
supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational relationship of the substantial infringement to the religious right and a colorable state interest. “(I)n this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’”[58] The Court found that there was no such compelling state interest to override Sherbert’s religious liberty. It added that even if the state could show that Sherbert’s exemption would pose serious detrimental effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations would address such detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of Sherbert’s benefits would force her to choose between receiving benefits and following her religion. This choice placed “the same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her Saturday worship.” This germinal case of Sherbert firmly established the exemption doctrine, [59] viz:
It is certain that not every conscience can be
accommodated by all the laws of the land; but
when general laws conflict with scruples of conscience, exemptions ought to be
granted unless some “compelling state interest” intervenes.
Thus, Sherbert and subsequent cases
held that when government action burdens, even inadvertently, a sincerely held
religious belief or practice, the state must justify the burden by
demonstrating that the law embodies a compelling interest, that no less
restrictive alternative exists, and that a religious exemption would impair the
state’s ability to effectuate its compelling interest. As in other instances of
state action affecting fundamental rights, negative impacts on those rights
demand the highest level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test resulted in
court-mandated religious exemptions from facially-neutral laws of general
application whenever unjustified burdens were found. [60]
Then, in the 1972 case of Wisconsin v. Yoder,[61]
the
It
follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it
must appear either that the State does not deny the free exercise of religious
belief by its requirement, or that there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free Exercise
Clause. Long before there was
general acknowledgement of the need for universal education, the Religion
Clauses had specially and firmly fixed the right of free exercise of religious
beliefs, and buttressing this fundamental right was an equally firm, even if
less explicit, prohibition against the establishment of any religion. The values underlying these two provisions
relating to religion have been zealously protected, sometimes even at the
expense of other interests of admittedly high social importance. . .
The
essence of all that has been said and written on the subject is that only those interests of the highest order
and those not otherwise served can overbalance legitimate claims to the free
exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of individuals,
even when religiously based, are often subject to regulation by the States in
the exercise of their undoubted power to promote the health, safety, and
general welfare, or the Federal government in the exercise of its delegated
powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of
the State is not to deny that there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of the State
to control, even under regulations of general applicability. . . .This
case, therefore, does not become easier because respondents were convicted for
their “actions” in refusing to send their children to the public high school;
in this context belief and action cannot be neatly confined in logic-tight
compartments. . . [62]
The cases of Sherbert and Yoder laid out the
following doctrines: (a) free exercise clause claims were subject to heightened scrutiny or compelling interest test if government
substantially burdened the exercise of religion; (b) heightened scrutiny or compelling interest test governed cases
where the burden was direct, i.e., the exercise of religion triggered
a criminal or civil penalty, as well as cases where the burden was
indirect, i.e., the exercise of religion resulted in the forfeiture of a
government benefit;[63]
and (c) the Court could carve out accommodations or exemptions from a facially
neutral law of general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected—conduct beyond speech, press, or worship was included in the shelter of freedom of religion. Neither Sherbert’s refusal to work on the Sabbath nor the Amish parents’ refusal to let their children attend ninth and tenth grades can be classified as conduct protected by the other clauses of the First Amendment. Second, indirect impositions on religious conduct, such as the denial of twenty-six weeks of unemployment insurance benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue in Yoder, were prohibited. Third, as the language in the two cases indicate, the protection granted was extensive. Only extremely strong governmental interests justified impingement on religious conduct, as the absolute language of the test of the Free Exercise Clause suggests. [64]
Fourth, the strong language was backed by a requirement that the government provide proof of the important interest at stake and of the dangers to that interest presented by the religious conduct at issue. Fifth, in determining the injury to the government’s interest, a court was required to focus on the effect that exempting religious claimants from the regulation would have, rather than on the value of the regulation in general. Thus, injury to governmental interest had to be measured at the margin: assuming the law still applied to all others, what would be the effect of exempting the religious claimant in this case and other similarly situated religious claimants in the future? Together, the fourth and fifth elements required that facts, rather than speculation, had to be presented concerning how the government’s interest would be harmed by excepting religious conduct from the law being challenged. [65]
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline to prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented the likelihood of exaggeration of the weight on the governmental interest side of the balance, by not allowing speculation about the effects of a decision adverse to those interests nor accepting that those interests would be defined at a higher level of generality than the constitutional interests on the other side of the balance. [66]
Thus, the strict scrutiny and
compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to
religious activity, a compelling secular justification was necessary to uphold
public policies that collided with religious practices. Although the members of the
Smith involved a challenge by Native Americans to an
Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption from an otherwise valid law. Scalia said that “[w]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” [71] Scalia thus declared “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 of the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” [72]
Justice Scalia’s opinion then reviewed the cases where free exercise challenges had been upheld—such as Cantwell, Murdock, Follet, Pierce, and Yoder—and said that none involved the free exercise clause claims alone. All involved “the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents to direct the education of their children.” [73] The Court said that Smith was distinguishable because it did not involve such a “hybrid situation,” but was a free exercise claim “unconnected with any communicative activity or parental right.” [74]
Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that “[e]ven if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law.” [75]
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability that burden religion. Justice Scalia said that “[p]recisely because ‘we are a cosmopolitan nation made up of people of almost conceivable religious preference,’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.” The Court said that those seeking religious exemptions from laws should look to the democratic process for protection, not the courts. [76]
Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling justification approach were abandoned for evaluating laws burdening religion; neutral laws of general applicability only have to meet the rational basis test, no matter how much they burden religion. [77]
Justice O’Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest test, asserting that “(t)he compelling state interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government interest ‘of the highest order.’”[78] She said that strict scrutiny is appropriate for free exercise challenges because “[t]he compelling interest test reflects the First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic society.” [79]
Justice O’Connor also disagreed
with the majority’s description of prior cases and especially its leaving the
protection of minority religions to the political process. She said that,
“First Amendment was enacted precisely to protect the rights of those whose
religious practice are not shared by the majority and may be viewed with
hostility.” [80]
Justice Blackmun wrote a dissenting
opinion that was joined by Justices Brennan and Marshall. The dissenting
Justices agreed with Justice O’Connor that the majority had mischaracterized
precedents, such as in describing Yoder as a “hybrid” case rather than as one
under the free exercise clause. The dissent also argued that strict scrutiny
should be used in evaluating government laws burdening religion. [81]
Criticism of Smith was intense and widespread.[82] Academics, Justices, and a bipartisan majority of Congress noisily denounced the decision.[83] Smith has the rather unusual distinction of being one case that is almost universally despised (and this is not too strong a word) by both the liberals and conservatives.[84] Liberals chasten the Court for its hostility to minority faiths which, in light of Smith’s general applicability rule, will allegedly suffer at the hands of the majority faith whether through outright hostility or neglect. Conservatives bemoan the decision as an assault on religious belief leaving religion, more than ever, subject to the caprice of an ever more secular nation that is increasingly hostile to religious belief as an oppressive and archaic anachronism. [85]
The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence.