The Untold Story of the Proto-Smith Era: Justice O'Connor's Papers and the Court's Free Exercise Revolution 

Abstract

Justice O’Connor’s recently released Supreme Court papers reveal the untold story of how the Court systematically dismantled religious accommodation protections in the decade leading up to Employment Division v. Smith. While Smith’s abandonment of strict scrutiny for neutral, generally applicable laws shocked the nation in 1990, this Article demonstrates that the decision marked the culmination of a carefully orchestrated retreat from the compelling interest test of Sherbert v. Verner and Wisconsin v. Yoder. Through parsing conference notes, draft opinions, and internal correspondence, we document how the Office of the Solicitor General’s persistent campaign against religious exemptions found increasing receptivity from the Court throughout the 1980s. The papers also reveal that several Justices in the proto-Smith era were skeptical of how practical it would be to offer religious accommodations to a diverse range of religious minorities. The Court described these groups as “odd ball religions,” or “squeaky wheel” faiths with “eccentric beliefs” that the Court struggled to understand and worried would be too difficult or "unimportant" to protect.

Of particular significance, the papers demonstrate that Lyng v. Northwest Indian Cemetery—sometimes treated as consistent with Sherbert jurisprudence—was actually a pivotal step away from that jurisprudence and toward Smith’s neutrality rule. Four of the five Justices in Lyng’s majority acknowledged their analysis would have been “different” if the case had involved the original logging plans rather than just road construction, suggesting the internal affairs doctrine may have served as an expedient rather than principled limitation. This historical evidence has immediate implications for current litigation, particularly Apache Stronghold v. United States—a case with a cert petition currently pending before the Supreme Court. In the decision below, the Ninth Circuit recently held that the Religious Freedom Restoration Act incorporated Lyng’s restrictive approach to religious land use claims as part of the Sherbert/Yoder era. Understanding Lyng’s true close connection to Smith lends support to the conclusion that Lyng is part of the proto-Smith era that RFRA replaced.

But this article also has enduring significance far beyond the Apache Stronghold case. A majority of the Justices on the Supreme Court have recently signaled an interest in revisiting the constitutional legal standard that will govern religious exemption requests under the Free Exercise Clause. Strikingly, the papers reveal that throughout this transformative period, the Court never seriously engaged with the historical understanding or textual meaning of the Free Exercise Clause. Instead, the Justices’ retreat from Sherbert and Yoder was driven primarily by consequentialist concerns about religious accommodation’s impact on government operations. The total lack of focus on the original meaning of the Free Exercise Clause provides additional reason to question the precedential value of Smith. Our examination of the Court’s dramatic free exercise transformation leading up to Smith thus offers valuable insights—and perhaps a cautionary tale—for its current doctrinal reassessment. 

Keywords: religious accomodations, free exercise, originalism, religious exercise, First Amendment, Native American, Sacred Sites, Indigenous People, Lyng v. Northwest Indian Cemetery Protective Ass'n, Employment Division v. Smith, Apache Stronghold v. United States, constitutional law, religious exemptions, Justice O'Connor, Supreme Court, Supreme Court Papers