According to the landmark Supreme Court decision in the case of Employment Division v. Smith, laws that restrict religious practices are constitutional so long as they are “neutral” and “generally applicable,” and don’t single out religion per se, or a particular religion. Justice Samuel Alito recently challenged this ruling, bringing as examples laws that might prohibit kosher slaughter, circumcision, or the wearing of head coverings in court. Such legislation, Alito noted, would severely restrict Jewish (and Muslim) practice, yet could still be written in a way that would be acceptable according to Smith. Josh Blackman, Howard Slugh, and Mitchell Rocklin explore these examples:
A neutral law to prohibit ritual kosher slaughter would likely be constitutional under Smith. . . . In recent years, animal-rights advocates have argued that ritual kosher slaughter inflicts undue pain on animals. In 2019, Belgium required that all animals be stunned before they are slaughtered. The stunning may involve an electric shock, or, for larger animals, firing a metal rod into the brain. This law was designed to prevent animals from feeling pain. But the laws of kashrut [prohibit such practices].
In effect, Belgium made it illegal to perform kosher slaughter. Muslims also argued that the law prohibited ritual halal slaughter. Yet the European Court of Justice, the highest court of the European Union, upheld the Belgian law. The court found that the Belgian laws “allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.”
Other countries have followed Belgium’s lead. Denmark, Iceland, Norway, Slovenia, and Sweden have enacted similar bans without exemptions for religious communities.
If this is so, why does the Anti-Defamation League (ADL)—along with other Jewish groups—insist on supporting Smith?
The ADL worries that granting exemptions from anti-discrimination laws, for example, could harm vulnerable minorities.
While we acknowledge the force of this argument, the ADL’s fear is, in fact, ultimately unfounded. Even if Smith were overturned, religious liberty would not automatically trump the state’s other interests. In a post-Smith world, the government could still burden religious exercise if it demonstrated that doing so was the least restrictive means to further a compelling government interest. This analysis would require a case-by-case consideration. Overruling Smith would not lead to the elimination of the core anti-discrimination laws that allow unpopular minorities to fully participate in American life.