Employment Div. v. Smith

36 Analyses of this case by attorneys

  1. If "Employment Division v. Smith" Isn't Loosened, Jack Phillips Might Be Bound for Failure

    David BoyleNovember 17, 2017

    (One helpfully notes that Phillips shares his name with a telegraphist on the Titanic.) In particular, there might be little chance for them to win except by convincing the Supreme Court to relax the death grip of Employment Division v. Smith (494 U.S. 872 (1990)) on the Free Exercise Clause of our Constitution's First Amendment. (The author has written previously, noting possible "compromises" in the case, in an amicus brief in the case, and another Casetext post, and by-the-bye in a pending amicus brief in Evans v. Georgia Regional Hospital, noting that LGBT employment may be a simpler issue than LGBT marriage.

  2. Superior Court Takes On Covid Vaccination, Religious & Speech Freedoms All in One Case.

    Fox Rothschild LLPMark AshtonMarch 10, 2023

    trine in making the ruling (baptism = “indelible spiritual mark”). The appellate court says that Mom needed to get judicial permission to baptize unless father consented.But, what would have occurred had she filed such a petition. Thirty years ago, the Superior Court made it clear that when it comes to religious decision making Court’s had nothing to say unless a party could show direct physical or emotional harm. In Zummo v. Zummo, the court wroteIt has long been a fixed star in our constitutional constellation that no government official, high or petty, have any authority whatsoever to declare orthodoxy in matters of religion. See West Virginia v. Barnette,319 U.S. 624, 642, 63 S. Ct. 1178, 1187, 87 L. Ed. 1628, 1639 (1943). Moreover, as courts may not divine truth or falsity in matters of religious doctrine, custom, or belief, courts may not give weight or consideration to such factors in resolving legal disputes in civil courts. See Employment Division v. Smith, ___ U.S. ___, ___, 110 S. Ct. 1595, 1603, 108 L. Ed. 2d 876, 889 (1990); Jones v. Wolf, 443 U.S. 595, 602-05, 99 S. Ct. 3020, 3025-26, 61 L. Ed. 2d 775, 784-85 (1979); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-15, 96 S.Ct 2372, 2380-83, 49 L. Ed. 2d 151, 162-66 (1976); Presbyterian Church v. Hull Church, 393 U.S. 440, 445-52, 89 S. Ct. 601, 604-07, 21 L. Ed. 2d 658, 663-67 (1969); Watson v. Jones, 13 Wall 679, 728-29, 20 L. Ed. 666, 676-77 (1872); see also Note, The Establishment Clause and Religion in Child Custody Disputes, 82 Mich.L.Rev. 1702, 1716 n. 49 (1984) (collecting other United States Supreme Court cases).….We hold that in order to justify restrictions upon parent’s rights to inculcate religious beliefs in their children, the party seeking the restriction must demonstrate by competent evidence that the belief or practice of the party to be restricted actually presents a substantial threat of present or future physical or emotional harm to the particular child or children involved in absence of the proposed restriction, and tha

  3. This Week at The Ninth: Sacred Land and Municipal Good Faith

    Morrison & Foerster LLP - Left Coast AppealsJune 27, 2022

    (2) The Court next held that Apache Stronghold’s Free Exercise Claim was also unlikely to succeed. The Court explained that under Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), a valid and neutral law of general applicability does not violate the Free Exercise Clause, even if that law burdens religion. The Land Exchange, the Court explained, is neutral in that its object is not to infringe upon the Apache’s religious practices and it is generally applicable because it does not selectively impose burdens only on conduct motivated by religious belief.

  4. Are Employer-Mandated Vaccines the Future? New York State Bar Association Says Yes

    Tyson & Mendes LLPMichael DrewsSeptember 27, 2021

    at 5.Id. at 4. Report at 10.Id. at 13; Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905) (where a smallpox vaccine mandate was upheld as a proper exercise of police power); Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015) (where a public school vaccine requirement was upheld as a proper exercise of police power). Report at 14, citing Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990).Id. at 14, citing F.F. v. State, 194 A.D.3d 80, 143 N.Y.S.3d 734 (2021).Id. Report at 28.

  5. Religious Institutions Update: July 2021

    Holland & Knight LLPNathan Adams IVJuly 23, 2021

    In a contemporaneous opinion, Diocese of Lubbock v. Guerrero, No. 20-0005, 2021 WL 2386208 (Tex. June 11, 2021), the court also dismissed as moot a collateral claim under the Texas Citizens Participation Act.Free ExerciseExclusion of Catholic Foster Care Agency Subject to Strict Scrutiny When Individualized Exemption InvolvedSome expected the U.S. Supreme Court to overturn Employment Div., Dep't of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990) in Fulton v. City of Philadelphia, No. 19-123, 593 U.S. __ (2021). Instead, Chief Justice John Roberts, writing for a unanimous court, ruled that the contractual clause at issue, prohibiting the plaintiff from placing children with foster families, fell outside of Smith and violated the Free Exercise Clause.

  6. SCOTUS Rules in Unanimous Favor of Catholic Government Contractor That Refuses to Work With Same-Sex Couples

    Seyfarth Shaw LLPSam Schwartz-FenwickJune 23, 2021

    The Supreme Courtruled unanimouslylast week in Fulton v. City of Philadelphia that the First Amendment of the Constitution exempted a Catholic social services agency from Philadelphia’s non-discrimination ordinance for government contractors. In initiating this litigation, the agency asked the justices to revisit a 30-year-old precedent—set forth in Employment Division v. Smith, 494 U.S. 872 (1990)—governing religious exemptions from “neutral laws of general applicability” that do not expressly target religion.In a decision penned by Chief Justice Roberts, the Court held the city’s decision to cease placing children with the agency due to its refusal to work with same-sex couples could not survive strict scrutiny, because the protection of these same-sex couples from discrimination under the specific ordinance was not a government interest compelling enough to impair the agency’s First Amendment Rights. The ruling focuses narrowly on the terms of Philadelphia’s contract with foster care agencies—a contract which forbids discrimination on the basis of, among other things, sexual orientation.

  7. OFCCP Week In Review: June 2021 #4

    DirectEmployers AssociationJohn FoxJune 21, 2021

    The case had drawn great interest given its potential to test whether statutory LGBTQ+ antidiscrimination protections must give way to the practice of good faith religious beliefs, or whether the practice of religious beliefs protected under the First Amendment must bow to antidiscrimination protections. For religious rights advocates, the hope was that the Supreme Court, following the appointment of three justices by President Donald Trump, would overturn the seminal case of Employment Division v. Smith, 110 S. Ct. 1595 (1990). The Smith case decision had held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the drug was part of a religious ritual.

  8. Supreme Court: Philadelphia Ordinance Unconstitutionally Burdened Religious Exercise

    Jackson Lewis P.C.Michelle PhillipsJune 18, 2021

    The Court acknowledged that “this interest is a weighty one,” but could not justify denying CSS an exception for its religious exercise in this case, while making such exceptions available to others in the Commissioner’s “sole discretion” under the Fair Practices Ordinance.Concurring OpinionsIn three separate concurring opinions, the justices questioned the scope and impact of the majority’s decision, though endorsing its holding. Justice Amy Coney Barrett’s concurrence (joined all or in part by Justices Brett Kavanaugh and Stephen Breyer) questioned what standard would apply if the Court were, in a future case, to overrule Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which set the standard that neutral and generally applicable laws do not violate the First Amendment’s Free Exercise Clause. However, Justice Barrett noted the Court need not find a replacement for Smith now, as Smith did not apply in the present dispute, because the contract at issue was neither neutral nor generally applicable.

  9. The Supreme Court - June 17, 2021

    Dorsey & Whitney LLPTimothy DroskeJune 18, 2021

    CSS sued, arguing that the City’s contractually-premised referral-freeze violated the Free Exercise Clause of the First Amendment. The district court and the Third Circuit, however, upheld the contract as “neutral and generally applicable” under Employment Division v. Smith, 494 U.S. 872 (1990). Today, in an opinion by Chief Justice Roberts, the Court reversed, holding that the City had burdened CSS’s religious exercise and violated CSS’s rights under the Free Exercise Clause.

  10. Supreme Court Decides Fulton v. Philadelphia

    Faegre Drinker Biddle & Reath LLPD. Alicia HickokJune 18, 2021

    It relied on Section 3.21 of its standard foster care contract, which currently states that a provider was not to reject a child or family based on sexual orientation unless the Commissioner or its designee grants a discretionary exception.CSS challenged the decision as a violation of its rights under the Free Exercise and Free Speech clauses of the United States Constitution. Both the district court and the Third Circuit Court of Appeals found for the City, holding that Employment Division, Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) compelled that result.Although it had been asked to overrule Smith (and the concurrences would have), the Court instead found that Smith did not control the case, because the provision the City sought to have enforced was not generally applicable and thus could not satisfy the Smith test.As a result, the Court ruled, the City could impose them on CSS only if the City could show that doing so served a “compelling government interest” and was “narrowly tailored to achieve those interests.” The Court concluded that Philadelphia had not met its burden.