In the post-Hobby Lobby environment, in which at least closely held corporations can assert free exercise rights, the question of when laws are of general applicability--and thus can be applied to believers without violating their free exercise rights under Employment Division v. Smith--has become critical for corporate counsel as well as constitutional lawyers. A new paper co-authored by leading religious freedom expert Douglas Haycock sheds light on the problem:
Twenty-six years after Employment Division v. Smith, the lower courts remain divided about its meaning. What does it mean for a law to be “generally applicable”? The Ninth Circuit recently upheld a regulation on facts as extreme as those in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). But other courts have held that a law is not generally applicable if it allows even one secular exception that undermines the state’s asserted interests in regulating religion. Close analysis of Smith and Lukumi reveals that the one-secular-exception interpretation is correct. The Court’s discussions of the “object” of a law, of religious “gerrymanders,” and of discrimination “because of” religion, appear only with respect to neutrality; none of these concepts are even mentioned with respect to general applicability. The Court’s reaffirmance of the unemployment-benefits cases show that even very narrow exceptions make a law less than generally applicable. Sound policy reasons support this more literal understanding of general applicability. Exempting secular but not religious activities that undermine alleged government interests deprives religious minorities of vicarious political protection and demonstrates a forbidden value judgment: the exempted secular activities are more valuable, more deserving of legal protection, than the unexempted exercise of religion. This understanding of general applicability implements, in the face of regulatory complexity, a rule prohibiting discrimination against the free exercise of religion.