Imad-as-Dean Ahmad, Ph.D.

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A Report to the Muslim-American Bar Association by Dr. Ahmad,
Liaison of the American Muslim Council to the Coalition for Free Exercise of Religion

In the 1990s “Smith Decision” the Supreme Court virtually nullified the Freedom of Religion Clause in the Bill of Rights by a 5-4 decision declaring that it was no longer necessary for the state to demonstrate a “compelling state interest” before abridging the freedom of religion of American citizens. In over 50 relevant cases heard since the Smith Decision, the erosion of religions—especially large minorities like Muslims, who may, by the size of their constituency, be perceived as a threat—are at the greatest risk. Issues in question include the right to adopt Muslim names, to abstain from pork products, and to wear hijab or kufiy. Because the reasoning of the Smith Decision could be applied to all rights guaranteed under the constitution, not just freedom of religion, all human rights have been jeopardized. The only remedies possible at this point are: (I) Congressional legislation; or (2) Civil disobedience in conjunction with jury nullification. Option (I) is being pursued by the American Muslim Council as a member of the Coalition for Free Exercise of Religion. The Muslim-American Bar Association can play a vital role in options (1) or (2).

1. The Smith Decision. The language of the first amendment is extremely strong and appears to leave no room for exceptions. It says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.”

Under the fourteenth amendment, such restrictions on Congress also apply to the states. Because the language is so strong, it has presented a potential obstacle to ordinary legislation. Taken at face value, it would appear to prohibit preventing the practice of human sacrifice by pagans. To resolve this difficulty, the court had, previous to Smith, held that a general law—not aimed at any particular religion—that happens to prohibit a particular religious practice is Constitutional provided two conditions were met: (1) that the law served a compelling state interest, and (2) that the law met that interest in the least restrictive manner. These requirements were removed by the 5-4 Smith Decision.

According to the syllabus provided by the Supreme court, Mr. Smith and a coworker were: ‘‘Fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a law disqualifying employees discharged for work-related ‘‘misconduct”~ Holding that the denial violated respondents’ First Amendment free exercise rights, the State Supreme court affirmed ... On remand, the State Supreme Court held that sacramental peyote use violated, and was not exempted from the state-law prohibition, but concluded that prohibition was invalid under the Free Exercise Cause. 1

The point that the law made no exemption for religious use is significant since other states prohibiting peyote use do make such an exemption (and in the wake of Smith, Oregon added such an exemption). Similarly, during Prohibition, exemption was made for sacramental use of alcohol. Sacramental use of alcohol is analogous with sacramental use of peyote as in both cases the quantity consumed is tiny compared to recreational use.

The Supreme court reversed the decision. The majority opinion, written by Scalia joined by Rehnquist, White, Stevens, and Kennedy held that strict scrutiny is not the appropriate standard for free exercise claims except where the Free Exercise Clause is considered ‘‘in conjunction with other constitutional protection. ”

Scalia distinguished Smith from previous cases by asserting that in those cases:
“We held that a State could not condition the availability of unemployment insurance on an individual’s unwillingness to forego conduct required by his religion. As we observed in Smith 1, however, the conduct at issue in those cases was not prohibited by law. ”

Scalia makes the sweeping claim that the court ‘‘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.” This statement is the heart of the majority’s opinion. It means that violating the religious freedom of an individual is Constitutional unless it also violates some additional clause of the constitution. Scalia justifies this denial of an independent Constitutional guarantee of religious freedom by abhorring the potential consequences of such a right of religious freedom: “If the ‘compelling interest’ test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if that compelling interest means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs” and its determination to coerce or suppress none of them. ”

This, says Scalia, “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service; to the payment of taxes,’ to health and safety regulation such as manslaughter and child neglect laws; drug laws,’ and traffic laws; to social welfare legislation such as minimum wage laws,’ child labor laws,’ animal cruelty laws; environmental protection laws; and laws providing for equality of opportunity for the races. The First Amendment’s of religious liberty does not require this. (Citations omitted.)”

Having dispensed with the constitutional protection of religious liberty, he leaves it to the discretion of politics. The dangers that this poses for members of minority religions, does not seem to bother Scalia, who concludes: “It may fairly be said that leaving accommodation to the political process will place at relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”

Scalia’s view is obviously at odds with the Islamic view of the primacy of God’s law over human legislation. From the points raised by the four justices who did not join in the majority opinion, it may well be argued that Scalia is at odds with the entire premise of Constitutional government as well.

In Justice O’Connor’s dissent, joined by Brennan, Blackmun and Marshall, she writes: “The Court today extracts from our long history of free exercise precedents the single categorical rule that ‘if prohibiting the exercise of religion… is… merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended” Ante, at 1599-1600 (citations omitted). Indeed, the Court holds that where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply. Ante. at 1603. To reach this sweeping result, however, the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulation that burden religious conduct.”

O’Connor emphasizes that “the First Amendment does not distinguish between “religious belief and religious conduct” and that therefore “conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause.” O’Connor contests the majority view that government may without justification prohibit religiously mandated conduct “so long as that prohibition is generally applicable’-for example, that a prohibition of hijab is constitutional provided no one is allowed to wear hijab whether Muslim or not. O’Connor writes that such a person ‘‘is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reason, only by members of that religion, or by all persons.”

Implicit in Scalia’s ruling is the assumption that attacks on the freedom of a particular religious group would always be overtly aimed at that group. O’Connor directly attacks this assumption: “…few states would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice.”

To restrict the Free Exercise protection to overt attacks on particular religious groups, then is to nullify the protection of religious freedom. O’Connor noted that the court had explicitly rejected the majority’s position in Wisconsin v. Yoder, 406 U.S., at 219-220, 92 SCt., at 1532-36 (emphasis added by O’Connor, citations omitted).
“… 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 tile power of the State to control, even under regulations of general applicability .... ”
“…A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion.”

That this consideration applied to the Smith case is demonstrated by Thomas v. Review Bd., Indiana Employment Security Div., 450 U.S. at 717-718, 101 S>CT> at 1432:
“Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.”

Finally, O’Connor expresses appropriate horror at Scalia’s characterization of the disfavoring of minority religions as an “unavoidable consequence” of the democratic system of government. She expresses the view that “the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed hostility.”

This view is supported by Justice Jackson’s view in West Virginia Board of Education v. Barnette (overruling Minersville School District v. Gobitius, 310 U.S. 586, 60 S.Ct. 1010,84 L.Ed. 1375 (1940) 319 U.S., at 638, 63 S.Ct., at 1185.

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and official and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights, may not be submitted to vote; they depend on the outcome of no elections. ”

It should be apparent from Justice Jackson’s words that are at issue in the Smith decision is not drugs, nor even religion. The reasoning used by the majority to deprive Mr. Smith of his right to follow the Native American religion can be used not only to deprive all members of minority faiths from the right to practice their religion, but may be used to undermine all the other rights supposedly “guaranteed” by the Construction.

2. Aftermath. The Smith Decision has now used by courts of appeal to deny religious exemptions in wide ranging cases. the Congressional Research Service includes the following examples (Ackerman I 992.): Catholics and Quakers were prevented from employing needy people without regard to their immigration status; a church was prevented from replacing a ‘7andmarked"auxiliary structure with an office tower to finance its ministries; the Salvation Army was prevented from operating adult rehabilitation centers as a violation of the New Jersey Rooming and Boarding House Acts; groups other than the Native American Church have been denied religious use of peyote; Mississippi’s avoidable consequences rule was applied to a wrongful death suit by the family of a Jehovah’s Witness involved in a car accident who refused blood transfusions; Kentucky’s equivalency testing for home schooling was forced on those alleging religious objections; autopsy forced on a Jewish motorist killed in an automobile accident; an FBI dismissal of an employee whose religious beliefs prevented him from investigating pacifists was upheld; a zoning ordinance excluding churches from commercial and industrial zones was upheld; forced enrollment in Ohio’s workers compensation program on those with Biblically based objections to the insurance scheme was upheld; prohibition of ritual sacrifice of animals was upheld.3

In addition, the following are among the decisions that have come down in the Federal district Courts (Akerman 1992): an autopsy in contravention of the descendant’s and his family’s religious beliefs; forcing the Boy Scouts of America to accept an atheist; conviction of an individual engaged in warding off evil spirits for money; third party levies against Quakers for income taxes for military purposes; imposition of record-keeping requirements on religious charities; covert surveillance of worship services of churches in the Sanctuary movement; application of the Age Discrimination Act to a religiously affiliated hospital; regulations limiting the services that may be performed by volunteers in proprietary nursing homes.

Similarly, the following are among the decision that have come down in the State courts (Ackerman 1992): Christian Scientist parents convicted of felony child abuse and third degree murder for relying on prayer to heal their child’s juvenile diabetes; a spouse found subject to proportional liability in his wrongful death suit against a physician who was negligent in treating his wife on the grounds that she, as a Jehovah’s witness, refused blood transfusion made necessary by negligence; a church subjected to State taxes on supplies obtained from out of state; homeowners who placed crosses in their front yards ruled in violation of setback requirements; a church’s violation of licensing requirements that would have prohibited discipline by spanking in accord with the church’s understanding of the Bible; prohibition off anti-abortion activities at Planned Parenthood facilities.

While the free exercise clause might have been found not to apply in a least some of the above cases in the absence of Smith, the issue is that the strict scrutiny test—is there a compelling state interest?—is not being applied. Since Smith, strict scrutiny is rarely used as the standard of review. In the six cases where the Courts have applied strict scrutiny, in only three were free exercise claims upheld (Ackerman 1992).

Since Smith there have been at least two cases involving Muslims. In one case, the issue was whether a prison might repeatedly served pork to Muslim prisoners. In Hunam v. Murphy, 907 F.2d at 48 (7th Cir. 1990), the Court wrote:

“Smith cut back, possibly to minute dimension, the doctrine that requires government to accommodate, at some cost minority religious preferences; the doctrine on which all prison cases are founded. No one suggests that the defendants are serving pork in order to offend Jews and Muslims; they serve it because it is cheap and nutritious; the practice may therefore be the equivalent of a general, secular regulation that just happens to interfere with the free exercise of religion by a minority group whose religious preferences are ignored in the shaping of general regulations. ”

Of this Farris (1992) notes that even though “the standards for prisoner religious cases was already lower than those applicable to the general citizenry, the Seventh Circuit has expressed a strong opinion that Smith may have taken those rights to an even lower level And it must be remembered that Smith was not a prisoners’ rights case. Thus, the religious rights of citizens may actually be lower than those previously enjoyed by prisoners. ”

Farris’ fears are supported by a chilling statement made by the Eighth Circuit Court. An Arkansas prisoner who converted to Islam was denied the use of his new Muslim name by the prison. The lower court permitted this on the grounds of Smith. The appeals court reversed the decision, but on the grounds that the prison was being unreasonable, rather than on free exercise grounds. In Salaam v. Lockhart, 905 F.2d. at 1171, the court indicated that Smith was irrelevant because “Smith does not alter the rights of prisoners; it simply brings the free exercise rights of private citizens closer to those of prisoners.”

3. Religious Freedom Restoration Act. The Smith Decision poses a grave threat to the rights of Muslims in America. Despite our recent efforts to become a politically cohesive and active community, we are by no means yet at a state where we could defend our rights, alone, through the political process. Our participation in a coalition to remedy the ill effects of Smith is the most reasonable course of action at this time. The American Muslim Council has joined that coalition and is engaged in the process of attempting to remedy the matter through passage of the Religious Freedom Restoration Act (RFRA), known as Hr 2797 in the House of Representatives (sponsored by Solarz with 190 cosponsors). The identical bill has been introduced into the Senate sponsored by Hatch and Kennedy.

The RFRA “would re-impose the strict scrutiny test on government action burdening the exercise of religion, not as a constitutional matter but as a statutory requirement” (Ackerman 1992). In the words of the bill itself its purposes are: “(I) to restore the compelling state interest test set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is burdened; and (2) to provide a claim or defense to persons whose religious exercise is burdened by government.”

“…Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(I) is essential to further a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest. ”

Provided that a sufficient degree of pressure is brought to bear on the Congress, RFRA has reasonably good prospects of passage.4 If and when it is passed, it will be necessary to support its application by courts. That is an appropriate task for the Muslim-American Bar Association. Among the issues to which it would apply are:
(I) Rules prohibiting the wearing of hijab or kufiyy. (2) Serving of pork to Muslims in prisons, mental hospitals, governments, schools, etc. (3) Right of people to change their name for religious reasons. (4) Halal Slaughter. (5) Tax resistance relating to aid to Israel.  (6) Draft resistance related to wars of aggression—especially against Muslims.

Civil disobedience may be an appropriate action to take against the status quo. In the absence of RFRA or a change in the personnel of the Supreme Court, it seems likely to be ineffective.

Ackennan, David M. 1992, “The Religious Freedom Restoration Act and the Religious Freedom Act; A Legal Analysis” (Washington: Congressional Research Service)
Farris, Michael P.I 1992, “The Post-Smith Treatment of Free Exercise.” (Home School Legal Defense Association.)
1.1 Unless otherwise noted, all quotes are from Emp. Div., Dept. of Human Res. v. Smith 110 S. Ct. 1595 (1990) .
2.2 Justice O’Connor agreed that the Oregon law should be upheld as constitutional, but only because she felt there was compelling state interest in the “war on drugs.” Brennan, Blackmun and Marshall argued that the banning of ritual use of peyote was of no material benefit to the war on drugs. They also objected to classifying any symbolic value as representing a compelling state interest, saying that “symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs cannot suffice to abrogate the constitutional rights of individuals,” Treasury Employees v. VonRaab, 490U.S.l09S. Ct.1384, 1401, 103 LEd. 2nd. 685 (1989) (Scalia, J. dissenting)2.
3. If upheld on further appeal, this last could become a precedent for the prohibition of halal slaughter.
4. An alternative to RFRA has been introduced by Congressman Smith called the Religious Freedom Act (RFA). The only significant difference between RFRA and RF A is that the latter makes three exceptions to the strict scrutiny rule—foremost an exception for legislation dealing with abortion—aimed at special interests of the Catholic Church. Unlike RFRA, RFA is not religion neutral and thus defeats the principal purpose of RFRA.

Originally published in the Spring 1993 print edition of

The American Muslim.