While Smith restricted the religious freedom of all Americans, religious minorities suffered the most harm. The court had predicted this, and for good reason. A legislature is more likely to pass a generally applicable law that accidentally burdens a little-known Jewish practice than a well-known Christian practice. Smith thus put the fate of uncommon and unknown religious beliefs at the mercy of majorities.
For example, there’s a Jewish prohibition against wearing clothes that contain both wool and linen. It is easy to imagine the armed forces requiring those in their command to wear uniforms that violate this religious rule. Jewish soldiers, per Smith, would be left with weakened constitutional recourse if their commanders refused to accommodate their concerns.
Courts have cited Smith to deny a Jewish parent the right to reject an autopsy on her child, a Jewish police officer the ability to wear a skullcap, and a Muslim corrections officer trainee the ability to maintain a religiously required beard. If the court were to reconsider Smith, these plaintiffs wouldn’t necessarily win, but at least they would have their day in court.
In 1993, soon after the Smith decision, Congress passed the Religious Freedom Restoration Act, which helped to restore pre-Smith protections. Unfortunately, the court determined that the statute would apply only when a litigant was challenging federal laws, not state or local ones.
But the act did illustrate that Justice Scalia was wrong that the Smith decision was necessary to prevent anarchy. With the act in place, religious believers have brought more claims, but they have not flooded the courts with litigation, and courts have proven capable of distinguishing between strong and weak claims. We should extend constitutional protection to all Americans regardless of what government entity burdens their faith.
Americans are rightly proud that in our country we can find countless examples of religious expression and practice — from Christians praying in public and Jews eating kosher meals to Sikhs carrying ceremonial daggers, or kirpans, at work, and a Muslim congresswoman wearing her hijab on the floor of the House of Representatives.
But few Americans realize that many religious practices often aren’t protected by the Constitution and thus could be effectively outlawed by the government. As the court considers Fulton, it should aim to restore robust First Amendment protections for Americans of all religious faiths.
Howard Slugh is a lawyer and co-founder of the Jewish Coalition for Religious Liberty. Asma T. Uddin is the author of the forthcoming book “The Politics of Vulnerability: How to Heal Muslim-Christian Relations in a Post-Christian America.”
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: email@example.com.
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
By Asma T. Uddin and Howard Slugh – www.nytimes.com