In Employment Division v. Smith, a case decided by the Supreme Court in 1990, Justice Antonin Scalia led the majority in ruling that the state of Oregon was allowed to deny unemployment benefits to two men fired from their jobs after ingesting peyote, an illegal drug, in a Native American religious ceremony.
At the time, the ruling substantially narrowed constitutional protections for religious freedom by stating that so long as a law like the peyote ban was officially applied neutrally between religious and nonreligious people, it did not violate the First Amendment — even if in practice it led to specific burdens on minority religious faiths.
More than 30 years later, Smith is a fascinating case study for thinking about how political divisions really work — especially our pandemic-era arguments about safety vs. liberty, the rights of the individual vs. the public-health obligations of the state. Not just the ruling but its reception and changing partisan valence say a lot about how what seems like stern ideological principle is really flexible — and how people come around to new positions on policy as soon as the in-groups and out-groups, the people benefiting and the people burdened, seem to be reversed.
Start with a simple-seeming question: Was the Smith ruling a conservative one? It would appear so just from looking at the way the justices' positions broke down, with Scalia the conservative icon writing the majority opinion and three liberal justices dissenting.
But the backlash against the decision was bipartisan, with liberals and religious conservatives alike decrying the new restrictions on religious liberty. The result of that backlash was the Religious Freedom Restoration Act of 1993, offering religious believers more legal protections, which passed the House of Representatives unanimously and the Senate overwhelmingly before being signed into law by Bill Clinton.
So maybe the logic of Smith was so right-wing that even Republicans balked at its application? Except that if you leap forward a few decades to our own era, that ideological analysis falls apart. Today, laws modeled on that act are opposed by many liberals, on the grounds that they offer too much protection for religious weirdos — meaning now not peyote-ingesting Oregonians but the Christian baker who doesn't want to make a cake for a same-sex wedding. Meanwhile, among conservatives, Scalia's Smith opinion is widely regarded as one of his worst mistakes, and the Republican-appointed majority currently on the Supreme Court seems poised to erode its applications.
Because the legal minds involved in these debates are clever, they can come up with ways to harmonize the shifts in terms of ideological principle. But looking at the whole story you could be forgiven for thinking that the best explanation for Smith's changing valence is just a change of in-groups and out-groups in American life.
The conservative majority that issued the 1990 decision, in other words, may have assumed at some level — a subconscious one, even — that they were establishing a precedent that would mostly be applied against New Agers and hippies, not their own mainstream religious traditions. The bipartisan reaction reflected the fact that the early 1990s were a moment when cultural conservatives and cultural liberals could equally imagine themselves as a potentially disfavored group. And the shift to today's world, in which liberals put "religious liberty" in scare quotes and conservatives lament the Smith precedent, reflects religious conservatism's increasing status as its own kind of weird, feared out-group, petitioning for exceptions from the legal and cultural rules laid down in liberal states.