73 Am. U. L. Rev. 1717 (2024).
Abstract
It is hard to deny that the United States is a Christian nation despite the First Amendment’s promise that the legislature will not establish a religion. The United States is not a Christian nation merely because of the religious beliefs that many people privately hold. It is a Christian nation, in part, because the courts and legislatures have facilitated that development. Moreover, as this Article will argue, Christian favoritism within the political and legal system has developed in sharp contrast to the treatment of Black people, women, the LGBTQ+ community, and disabled people.
This Article explores the development of Christian domination through the tentacles of one case—Employment Division v. Smith—which involves the denial of unemployment benefits to two individuals who smoked peyote at a Native American Church religious ceremony. It makes four points. First, this Article argues that the courts misframed Smith as one about a neutral state law that had an adverse religious impact, missing the evidence of overt religious bias faced by the plaintiffs. Second, this misframing, in turn, caused Congress to overreact by enacting a law—the Religious Freedom Restoration Act (RFRA)—that gave unprecedented protection to religious adherents. Third, even when RFRA does not apply, the Supreme Court has done constitutional gymnastics to protect Christian adherents despite the holding in Smith. Fourth, the Court used the unconstitutional overreach of some aspects of RFRA to fashion a constitutional rule that has done nothing to limit protections for Christians but has dramatically cut back Congress’s ability to enact civil rights legislation.
This is quite a story of the spread of Christian domination from the denial of protection to two participants in a Native American Church ceremony. Telling this story may help us re-frame the discussion of religious discrimination to understand the extraordinary case law that has protected Christians in sharp contrast to, and sometimes at the expense of, the treatment of various historically disadvantaged groups in society.
* Distinguished University Professor and Heck-Faust Memorial Chair in Constitutional Law, The Ohio State University Moritz College of Law. I would like to thank Moritz law librarian Stephanie Ziegler for her assistance with this Article. I would also like to thank Professors César Cuauhtémoc García Hernández, Margaret Kwoka, David Levine, and Ric Simmons for their constructive suggestions on an earlier draft, as well as the helpful participants at the Moritz College of Law workshop held on July 5, 2023.