John Blomster: Hello, and welcome to DISCOVERY. I'm your host John Blomster. And today we're speaking with Steven Collis, chair of the nation-wide Religious Institutions and First Amendment Practice Group at Holland & Hart LLP. Steve is a renowned expert on the intersection of law and religion. And he's represented a broad range of clients, ranging from religious institutions to those facing issues in labor, employment and commercial litigation, among others. This summer, he'll be joining Stanford Law School where he will be a research fellow and serve as executive director of the university's Constitutional Law Center. But before he does that, he's taking the time to join us on Discovery to talk about how the First Amendment's Free Exercise Clause is shaping some of the biggest, most consequential issues of the day. So Steve, thank you very much for being here.
Steven Collis: Thank you for having me.
Blomster: The Free Exercise Clause is one of the most important in the U.S. Constitution, and it really represents a foundational element of our democracy. Can you explain what this clause is and why it's so important?
Collis: Sure, there are two religion clauses in the First Amendment that are often referred to as the first freedom simply because they show up as the first two clauses of the First Amendment. But there's the Free Exercise Clause and the Establishment Clause. The Establishment Clause is where we get this idea of separation of church and state, and the notion that government cannot establish a state religion. And what that means beyond that is something scholars will probably debate till the end of time. The other clause is the Free Exercise Clause, which we're talking about today. And that essentially limits to some degree, how much government can burden someone's exercise of their religion. Now, of course, it's a great issue for debate as to how much it limits government. But that's the thrust of the clause.
Blomster: And we're seeing a host of issues where this is really becoming top of mind today. But historically, over the first, say, hundred years that the United States was a country, this wasn't a huge topic of discussion, maybe one of the first major case where the court issued an interpretation of the clause was Reynolds v. the United States. Why was this particularly important? Why was this seen as kind of the first interpretation?
Collis: Yeah, well, you know, it's interesting. It was actually a big topic of conversation at the time of the founding, the founders spend a lot of time and energy debating and thinking about the Free Exercise Clause. And there were some cases early on dealing with the free exercise of religion. But you're right, really what happened was, early in the United States history, we did not have a government that regulated nearly as much as we have today. And we didn't have nearly as much religious diversity as we have today. So there simply weren't that many cases that were popping up. Or in the situations where government was really burdening people's exercise of their religion, like in the case of Native Americans, or slaves, the reality was, they didn't have the power to fight back. So the first group that really had the power to fight back were the members of the Church of Jesus Christ of Latter Day Saints, and it was their practice of plural marriage or polygamy that really triggered things. And they were the first group that actually took free exercise claims to court to really fight for the right to practice their religion, and the government was trying to suppress them. And that's why it got triggered when it did.
Blomster: The interpretation of the clause in terms of which practices fall under protection and which don't are really complicated and sometimes the line can be blurry if you're just reading through things cursory. So what's an example of—a historical example of a practice—that did fall under protection of the Free Exercise Clause? And then one that did not and the reasoning for either one of those?
Collis: Sure, well, and maybe to rephrase it a little bit, I would say all of religious exercise would fall into the protection of the clause. The question is whether or not once the clause is applied, whether or not the courts ruled in favor of protecting the religious exercise, right? To give you some early examples. Well, it's interesting. Let me go back to your original question related to the Reynolds case. Around that time in 1890, the Supreme Court largely interpreted the clause out of the Constitution. And what I mean by that is, they essentially ruled that if a religious belief is repugnant enough to the majority, if the majority finds it repugnant enough, then there is no protection under the Constitution. That's essentially what the court ruled in 1890. And that kind of stayed in place up until around the 1940s, 50s and 60s when there was kind of a thawing, and the court started to protect more and more religious behavior. So one of the early cases to answer your latest question, involved Jehovah's Witnesses preaching on the street in a heavily Catholic neighborhood, and they had a record player that they used to play anti-Catholic sentiment. And it caused kind of a big uproar, and they were charged with disturbing the peace. And the Supreme Court ruled that no, the First Amendment does protect them. So that was a combination of speech, and religious exercise that the court upheld there. Over time, though, the court started to protect more and more religious practices, including, for example, an atheist in 1959. And this is something I write about—a story that I tell him my latest book—this atheist, wanted a job with the state of Maryland, and the state of Maryland told him that he could not have the job unless he signed something saying he believed in God. And in that case, the support court ruled nine to nothing that the state of Maryland could not do that consistent with the Free Exercise Clause. So those are examples of beliefs that are protected. And then of course, plural marriage was not protected, historically. Today, we have many other things that we fight about as to whether or not they should be protected.
Blomster: Given that plural marriage was not sanctioned by the United States, how was it determined that that versus something like a speaker playing anti-Catholic rhetoric is protected, but plural marriage is not?
Collis: Well, so the court has changed his test over time. And that's what's kind of fascinating about this. In 1890, the court essentially ruled: Well, we think this is a repugnant belief, we think it's harmful to society, and therefore we're going to not allow it. All of these religious Free Exercise cases follow a very similar pattern. There's a law passed by the majority, that really doesn't bother most people, it doesn't interfere with their lives at all or their religious practice. Then there's a small group for whom it does interfere with their religious practice. And that small group asks for a religious exemption to the law. So under the Constitution, they say, this law may apply to everyone else and not bother them, but we should get religious protections. All of these cases follow that same basic pattern. The way courts have answered that question over the years has changed. So starting in the 1940s, 50s and 60s, the court essentially developed the strict scrutiny test that we use today, or we call the compelling interest test, right? And the courts under that test, the courts have to determine whether or not the government is trying to meet a compelling interest and whether they've taken the most narrow way possible of achieving that compelling interest. That's what the court did, from about 1963 till about 1990. To determine whether or not people should get their religious exemptions, and it worked actually quite well for our country. In 1990, the entire test changed.
So there was a case in 1990, called Employment Division v. Smith. And that changed everything. That case involve peyote, and the Native American church and its use of peyote in religious practices. And there was a Klamath Indian man named Al Smith, who was not a member of the Native American church, but he did use peyote on occasion. The case has a long history. But eventually the question got to the Supreme Court of whether or not if the state of Oregon is banning across the board, the use of peyote could Native Americans get a religious exemption. And without any briefing, and without any input, the Supreme Court completely changed the test, they jettisoned the compelling interest test, and they came up with a new test. And essentially, the new test was if the law is neutral and generally applicable, then it does not matter if it burdens someone's religious exercise. And what they ruled in that case was Oregon's ban on peyote was neutral, and it applied generally to everybody. And therefore it doesn't matter that it burdened this practice, Now you have to think about what the implications of that are. The use of peyote for the Native American church was essentially their central sacrament. That would be the same as if we banned alcohol across the board. Let's say we had prohibition, and we had no religious exemptions. That would mean Catholics could not engage in using wine in their Catholic mass. And Jews could not use wine in Seder. So it's the central sacrament of these religious practices was suddenly at risk. And that's what changed in 1990. So we no longer have the compelling interest test, and at least under the First Amendment standard for the Free Exercise Clause, courts have to ask, is the law neutral? And is the law generally applicable?
Blomster: What compelled them to change? Why was that point in our history where we suddenly saw this veer?
Collis: Well, it's actually kind of funny because it was the conservative wing of the court that made that ruling, which surprises a lot of people today. Justice Scalia wrote the opinion. He came up with this test almost completely on his own. There was no briefing on it whatsoever. And in fact, a really funny anecdote that I came across as I was researching my book. Another story I tell in my book is about the Al Smith case. When Justice Scalia was coming up with this neutral and generally applicable test in chambers, one of his clerks said, “Well, Justice Scalia, this means people can ban wine at Catholic mass and you couldn’t do anything about it.” And he said, “Oh, that'll never happen.”
So when you get to oral argument, the lawyer for Al Smith is trying to make the point at one point, that if the state of Oregon really was worried about substance abuse among Native Americans, they wouldn't be banning peyote, which had no problems with substance abuse, what they would ban is alcohol, because alcoholism was really rampant on the Klamath reservation. And he makes that point, trying to show that the state of Oregon really doesn't have a compelling interest. And he gets interrupted by Justice Scalia, who says, “This has nothing to do with Catholic mass, I don't see how this has any correlation whatsoever.” Nobody really knew why Justice Scalia interrupted and said that. Now we know why. It's because his clerks had been pointing that out to him. Anyway, he comes out of nowhere with this test. No one briefed it. No one brief the pros and cons of it. The Supreme Court didn't ask the parties come back and tell us what you think about this new test. They just created it. And the reason they did it was this was about the time that the Supreme Court was starting to push back on what I refer to as the rights revolution, right? So for many years, the Supreme Court had been expanding constitutional rights. We saw it with prisoner cases, we saw it with abortion rights, we saw it with various issues related to human sexuality. And what you had was a pushback to say, we're going to we're going to push back on this expansion of rights and leave the states to regulate things as they want. And the Smith test and this religious liberty test kind of got caught up in that. This was when the first time that you might say the conservative wing of the court had a majority. And they were starting to push back on this expansion of rights. And so for exercise law got caught up in that.
Blomster: And since 1990, the makeup of the court has changed dramatically. Now we see with a solidly conservative majority, it's very different and probably will be for a long time. Looking at some of the recent cases. One of the ones that you write about in the book is Masterpiece cake shop v. Colorado Civil Rights Commission. That's a very recent example of how the Free Exercise Clause was applied. Can you tell us a little bit about that case and why it was so important?
Collis: Sure. So that case helped us better understand again, what this standard that was created in the Smith test means. So as I said, Justice Scalia comes up with this standard, a law must be neutral and generally applicable. And if it is, it can burden religion. Unfortunately, he didn't really define what neutral and generally applicable means. And so courts have been left to try to understand that on their own and some of my scholarship has helped kind of flush that out. The Masterpiece case was interesting, though, because it really did raise those two questions: Was what the state of Colorado was doing in that case in neutral, and was it generally applicable? To give you a little bit of a sense of the factual background: Jack Philips is this baker in Colorado, his religious beliefs were that he would love to bake cakes, he bake them for anybody, but there were certain events that he could not celebrate. So for example, he would never bake a custom cake to celebrate Halloween, because according to his religious tradition, he feels like Halloween celebrates the occult. He doesn't want to celebrate that as well. He wouldn't make cake celebrating divorces. Believe it or not, people get cakes to celebrate divorces. He refused to make those. He wouldn't make cake celebrating bachelor parties because he felt like there was too much debauchery going on at bachelor parties. And inconsistent with his religious tradition, he wouldn't bake cake celebrating a same sex marriage. So if a gay couple came in, he'd sell them anything in the shop that was on the shelf, he had no problem serving them that, but if they asked him to make a custom cake celebrating the same sex marriage, he couldn't do it consistent with his religious beliefs.
So then David Mullins and Charlie Craig, a gay couple, come in and they ask for a custom wedding cake to celebrate their same sex marriage. Jack Phillips tells them, “Look, I'll see you anything in the store, guys. I'm happy to sell you anything here. But I can't make the custom cake for that.” For the reasons I've explained. They took their case to the Colorado Civil Rights Commission, who then came after Jack Phillips. And it resulted in this hearing against him and rulings against him going up to the Supreme Court.
At the same time as the case is progressing. The Colorado Civil Rights Commission and a number of its members start making pretty derogatory comments about Jack Phillips religious beliefs. They refer to his religious beliefs as despicable, they compare him to slave holders and Nazis, which just put him to tears. Meanwhile, you've got the gay couple and Jack Phillips being caught up in this massive aspect of the culture wars that neither of them really wanted to be the center of, but they kind of got pulled into it. Simultaneously, you have another customer going to other cake shops in Denver, and ask for cakes that have a message on them that essentially says that same sex sexual behavior is a sin, but God forgives sinners and we're all sinners. That's what this person asked for. And three different cake shops refuse to bake that cake. And in those cases, Colorado Civil Rights Commission actually protected the bakers and said, “Well, the bakers who are not discriminating against someone with those beliefs, they just don't want to bake a cake that they don't want to be complicit in baking a cake that violates what they believe.” So the Civil Rights Commission basically held, took out two very different standards and didn't apply the law in a general way.
When the case gets to the Supreme Court. The Supreme Court then has to ask the question: Was Colorado neutral and did they apply this law on a generally applicable way? And what they did was they looked at the fact that the Civil Rights Commission had been inconsistent in its enforcement. And then they looked at the public statements the Civil Rights Commission had made in calling Jack Phillips’ beliefs despicable. And comparing him to Nazis and slaveholders and seven to two determine that the Civil Rights Commission had not in fact, been neutral. So once they determined that the law was not neutral, they basically overruled everything Colorado had done and that's why the baker won in that case. So they did apply the Smith standard that was developed in 1990.
Blomster: Has there been an interpretation of the Smith standard, or of the Free Exercise Clause since 1990 that was dramatically different from that, or is that really been, you know, the North Star for these kinds of cases in the last couple of decades?
Collis: It has been the guiding standard. I'm hesitant to call it the North Star because it hasn't been nearly as effective as the North Star is in guiding people.
Blomster: It’s a fair point. Y
Collis: Yeah. There was one other case in 1993, called Lukumi v. City of Hialeah. That case expanded a little bit and help people understand a little bit more that a neutral and generally applicable law actually has two components to it. In other words, a law can be neutral, but not generally applicable. So it has to pass both of those prongs. That case, the Lukumi case helped flush out the standard a little bit more. But the Supreme Court really had not addressed it again and helped flush it out until Masterpiece. So you what you really had was two decades of people, almost three decades of people, lower courts trying to apply the neutral and generally applicable standard without much guidance from the Supreme Court. Humorously in Lukumi the justices did talk about how it was a two prong test. And Justice Scalia got all upset and kind of said, Well, I never meant this to be a two prong test. But he didn't flush that out in Smith so everyone's left to interpret it on their own. The reality is lower courts have interpreted the test differently. But Masterpiece helps shed quite a bit of light on what does it mean for a lot of being neutral? And one thing that's fascinating about Masterpiece, I think, is they ruled that the law was not neutral, and therefore overruled, everything Colorado had done including the Colorado Court of Appeals, but they didn't apply strict scrutiny. So it appears at least from Masterpiece that if a law lacks neutrality, in other words, if a state targets someone specifically because of their religious beliefs, it’s de facto unconstitutional. You could have a situation where you say, well, it's not neutral. But then let's apply the compelling interest test and see why. They seem to have suggested implicitly that you don't even go to the compelling interest test. The law lacks neutrality, it's unconstitutional. I don't know if that's truly how they'll apply it down the road. But that certainly seems to be what they did in the masterpiece ruling.
Blomster: With the conservative majority on the Supreme Court now, it brings up the question for me, has the interpretation or application of the Free Exercise Clause changed? Or does it lean one way or the other depending on if it's a liberal majority or a conservative majority? Or is this one thing that is fairly neutral in terms of the application on certain cases?
Collis: Well, I do think it can change. Obviously, we saw that big change in 1990. One thing that is interesting is at least seven of the nine justices generally are going to err on the side of protecting religious freedom and Justices Breyer and Kagan regularly rule in favor of protecting religious minorities and people who have religious free exercise claims. So you've got seven of the nine justices that are fairly consistent. I think the only question really becomes whether or not there is a compelling interest that might motivate Justices Breyer and Kagan in a way that might not motivate what we generally refer to as the conservative.
Now, that said, there's a case here out of the state of Washington that recently went up to the Supreme Court, cert was sought more as a free speech claim. So the court denied cert because of that. But what's interesting is four of the nine justices—and it was largely what we what we referred to as the conservative block, except for Justice Roberts—all said or at least hinted at it when when they denied cert, they issued an opinion suggesting that they might be willing to revisit the Smith test. A lot of people are reading a whole lot into that cert denial. What I think a lot of people are thinking is that it's possible there may now be at least four and potentially five votes to go back to the way things were before the Smith decision. And just if government burdens someone's exercise with their religion, you apply the compelling interest test. That would add a lot of clarity to the law in this area. But it's not entirely certain that that's what they're going to do. Again, they hinted at it. It almost seemed to be encouraging someone to bring the right case to them. But I don't know if they'll actually do it when that case arrives.
Blomster: Is there a case like that that you see moving through the courts or a potential flashpoint that could lead to a case that would open the door for that kind of examination or revisiting of that?
Collis: Yes, there are always cases popping up. And it's interesting. When we talk about the free exercise of religion, the media tends to only focus on those involving LGBT rights and abortion rights. The reality is the vast majority of free exercise cases have absolutely nothing to do with those things. They have to do with things like Muslim prisoners making exercise claims in prison or Buddhist prisoners making free exercise claims, or churches, you know, sanctuary churches, being able to offer sanctuary to immigrants and wondering how they'll be protected if ICE comes after them. Those cases are all percolating in the lower courts. And I think any one of them could actually serve as a vehicle to have the court revisit these issues if it wanted to.
Now, let me just emphasize them. Some of those cases involve statutes, statutory protection, so it may well be that a case involving a prisoner that involves a statutory claim just wouldn't be the right vehicle, because the court will say, well, we're already dealing with a statute here, and they haven't brought a constitutional claim. So we're not just going to on our own revisit the constitutional test, right? What's probably going to happen, I think, is that one of these free exercise cases involving a prisoner or some other very sympathetic religious minority is going to come up. And the lawyers involved will go out of their way to make sure that there's a constitutional claim in there so that the court feels like it actually can spend time touching on it. But as you know, there is a principle in constitutional law that says, “Look, if we don't have to get to a constitutional question, we're not going to.”
Blomster: For aspiring lawyers, young law students and legal scholars who want to get involved in this kind of work, the kind of work that you, you know, spend so much of your career—this intersection of law and religion, these really foundational issues—what advice would you give them? What should they be focusing on right now and paying attention to in terms of all that's happening, currently around these issues?
I would first say, to have a very open mind about how they're exploring these things. Most people, in my experience, get into this area or law and similar areas, because they have a stake on one side of the other. And they really want to push for one viewpoint or another. I think that's a mistake. I think you're far better off to have an intellectual curiosity about this area, and then really spend a lot of time and energy understanding the arguments from both sides. I shouldn't even say both sides, from multiple sides, the varying viewpoints and understand what the issues are, why people are arguing what they are for various different tests. There are some people out there who think the Smith decision was the absolute best decision that's ever been made. And they think it's the exact right way the constitution should treat religious free exercise. There are other people who think it was the worst decision that's ever been issued. And then there's other people who think it's, you know, it's okay that it's working out the way it should, but that there could be something better.
So I would encourage folks not to get so caught up in the side that they think they're on as much as just really spend time to really understand all the arguments from both sides or all sides. That's one thing.
And then the other thing, too, is just looking for opportunities to get involved. There are plenty of non-profits. There are plenty of constitutional law centers across the country where students can get engaged in this kind of work, and we learn a lot more about it.
Blomster: Steven Collis has a new book out right now in which you can take a deeper dive into the topic we've discussed today through the lens of four really incredible stories and cases. The book is called, Deep Conviction, True Stories of Ordinary Americans Fighting for the Freedom to Live their Beliefs. It is out now on Amazon, so be sure to check that out. And finally, be sure to check out more from the Stanford Constitutional Law Center where he will be taking the reins this summer at law.stanford.edu. You can find links to all this and more in our show notes, so be sure to click around there.
Steven, thank you so much for joining us here on DISCOVERY.
Collis: Thanks for having me.
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