Academic Legal Writing - Eugene Volokh [114]
[¶ 47] The two other intra-religious dispute cases involved claims brought by potential pastors, both of whom were denied positions within their respective churches. The first was brought by a 63-year-old Methodist minister who alleged that he had been denied a “promotion” to a congregation more suited to his training and skills because of his age. He claimed that this denial violated the Age Discrimination in Employment Act (ADEA). The second case was brought by a woman denied a pastoral position in the Seventh-Day Adventist Church. She claimed that the denial constituted sexual discrimination, in violation of Title VII. The courts in each case refused to apply the relevant federal laws to these situations, stating that neither the courts nor the government should interfere with such church decisions. In essence, the courts exempted these personnel decisions from generally applicable federal employment laws.
[¶ 48] In the wake of Smith, it is possible that such exemptions would be disallowed, as that seems in keeping with the central holding of the case. There is language in Smith, however, that suggests otherwise. In listing what the Free Exercise Clause “obviously excludes,” the Court recognized that the government may not “lend its power to one or the other side in controversies over religious authority or dogma.” The Court essentially reaffirmed a general tradition, pointed to in these three cases, of abstaining from becoming embroiled in churches' internal decisions. Even if courts were to abandon this tradition, however, it is possible that the religious groups in these cases could present a hybrid claim, combining their free exercise rights with a freedom of association claim. That this particular hybrid would be subject to a compelling interest test is specifically suggested by Justice Scalia in Smith.
[¶ 49] The last of these seven cases seems most likely in danger of coming out differently under a post-Smith analysis. In Quaring v. Peterson, the court held that Nebraska could not deny Ms. Quaring an exemption to its requirement that all driver's licenses contain a photograph of the driver. Such a requirement, the court held, unduly burdened Ms. Quaring's sincere religious beliefs, and was not justified by a compelling state interest. Based on the analysis of the application of the strict scrutiny test in the losing cases, the outcome of this case, which was affirmed by an equally divided Supreme Court without opinion,145 using the Smith rational basis test, would most likely be different.
[¶ 50] It is important to note, however, that a state court heard the same claim in a different case and reached a different result, holding that the state had a compelling interest in preventing such exemptions. Interestingly, one of the judges in Quaring dissented along grounds similar to those expressed in this state case. These differing results illustrate that the one case that could come out differently after Smith, could—and did—come out differently before Smith, depending solely on the court in which the case was brought. Finally, these differing results reinforce the assertion that the compelling interest test, at best, offered the religious claimant unreliable protection.
As I mentioned above, this subsection and the following one are especially important, because they deal with what seem like counterexamples to the article's claim. Observe how the subsection operates.
In ¶ 42 to ¶ 45, the article deals with cases that fit squarely within those zones that Smith itself said should still be judged under strict scrutiny. The subsection explains why this is so, why therefore these cases wouldn't actually be affected by Smith, and why the article's