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Football Prayer Case May Signal High Court Shift

Jan. 25, 2019, 9:55 AM

Four U.S. Supreme Court justices, in a show of the strengthened conservative majority, signaled interest in overturning a seminal ruling on freedom of religion in their statement about a case involving a high school football coach who lost his job for praying on the field.

Although the justices said Jan. 22 that Joe Kennedy’s claim against a Washington state public school district wasn’t suitable for Supreme Court review, Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch indicated in an eye-opening statement that the time may be right to hear a case like it.

The additions to the high court of Gorsuch in 2017 and Kavanaugh last year have fortified a conservative bloc, and this statement is an early showing of how the justices may want to revisit—and overturn—earlier opinions on issues like religious freedom.

The statement, penned by Alito, critiqued a 1990 ruling that he said “drastically cut back” on the protection provided by the U.S. Constitution’s free exercise clause, John D. Inazu, a professor at Washington University in St. Louis law school who focuses on law and religion, said.

That decision was Emp’t Div., Dep’t of Human Res. of Or. v. Smith, which held that the First Amendment doesn’t prohibit application of a neutral law to religious conduct.

Backlash against Smith led to passage of the Religious Freedom Restoration Act, which overturns Smith in cases involving the federal government, but the decision still applies to a large number of free exercise cases not implicating the federal government, Inazu said.

“This is potentially a big deal” because the justices gave an open invitation for litigants to present the question of whether the court should overrule that decision, Douglas Laycock, a professor at the University of Virginia School of Law, who has written extensively about religious liberty law, said.

Inazu said there “may well be a significant and recent shift” on the court relative to Smith given the recent departures of the last two remaining justices who joined it—Antonin Scalia, who authored it, and Anthony Kennedy. Gorsuch and Kavanaugh replaced those justices.

The court has recently shown an interest in First Amendment controversies involving religion. It will hear argument Feb. 27 in a dispute over whether a cross-shaped World War I memorial outside of Washington should stand despite objections that it violates the First Amendment, The American Legion v. American Humanist Association.

It takes four justices to agree to hear a case, so if the right case came along the justices who signed on to Alito’s statement could grant review of the case.

It’s not clear whether Chief Justice John G. Roberts Jr. or another justice would join them in issuing a decision. But Alito’s statement is “fascinating,” and “I do think it is possible” that Roberts and perhaps other justices would vote to overturn Smith, Frank S. Ravitch, a professor who teaches about law and religion at Michigan State University law school, said.

Robert’s absence from the statement was conspicuous, Laycock said, noting that Roberts might not agree with the four justices, or might not want to “highlight the partisan divide that he is trying to reduce.”

Conservatives Concerned

Smith ruled that the state of Oregon could deny unemployment benefits to members of the Native American Church that were fired for using peyote for religious purposes.

The denial was permissible under the free exercise clause because there was no contention that it was an attempt to regulate religious beliefs, the court said.

Alito’s statement expresses a commonly-held concern among conservatives that Smith “has failed to provide any meaningful protection of religious liberty,” Josh Blackman, a professor at South Texas College of Law Houston who writes for the conservative National Review, said.

Their concern is that so “long as government officials keep their motives quiet, the state can impose substantial burdens on free exercise,” Blackman said. “The alternative, of course, is a heightened standard of review that allows the courts, and not legislatures, to balance the role that religion can play in civil society.”

Course Change

Laycock noted that it was four conservatives plus Justice John Paul Stevens who decided Smith, and it’s now four conservative justices “who call for its overruling.”

Nonetheless, Laycock suggested that Justice Stephen G. Breyer could be a fifth vote to overturn Smith.

Breyer said in 1997 that the court should direct parties to brief whether Smith was correctly decided, writing separately in 1997’s City of Boerne v. Flores.

Breyer seemed to think Smith was wrongly decided, but that “was a long time ago, and we don’t know whether more recent cases have changed his mind,” Laycock said.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at